West Flagler Associates filed a writ petition Thursday with the Supreme Court of the United States in the Florida sports betting case against the Department of the Interior.
West Flagler had received approval from SCOTUS to extend its filing deadline from Dec. 11, 2023 to Thursday.
Hard Rock Bet operating Florida
Meanwhile, Hard Rock Bet has been operating Florida sports betting for a few months.
The Hard Rock online sports betting app re-launched on Nov. 7, while the operator debuted in-person sports betting at its Seminole casinos a month later.
There is a separate FL sports betting case in state court that is also pending.
West Flagler challenges Seminole pact
The Seminole Tribe of Florida has exclusivity to offer sports betting in the Sunshine State.
That is because of the Seminole Compact, which was negotiated with Gov. Ron DeSantis in 2021.
However, West Flagler is attempting to challenge that pact in the highest court in the land.
Three Florida sports betting questions
The writ petition asks SCOTUS to consider three questions:
- “Whether the Indian Gaming Regulatory Act (IGRA) authorizes the approval of a compact that purports to allow for an online sports gambling monopoly throughout the state and off Indian lands.”
- “Whether an IGRA compact violates the Unlawful Internet Gambling Enforcement Act (UIGEA) if it provides for internet sports betting that is unlawful where many of the bets are placed.”
- “Whether the Secretary’s approval of a tribal-state compact violates equal protection principles where it provides a specific tribe with a monopoly on online sports gaming off tribal lands, while state law makes that conduct a felony for everyone else.”
West Flagler makes its case
Attorney Hamish Hume and his colleagues presented the following reasons why the court should grant the petition:
- “IGRA does not authorize the approval of a compact that provides a statewide tribal monopoly over online sports gaming.” IGRA allows the secretary “to approve any Tribal-State compact entered into between an Indian tribe and a State governing gaming on Indian lands.”
- “The DC Circuit’s analysis of UIGEA conflicts with the Ninth Circuit interpretation in a similar case.”
- “This case raises an important national issue regarding the constitutionality of granting a statewide gambling monopoly to an Indian tribe.”
West Flagler concludes its argument
West Flagler notes before its conclusion:
“As different jurisdictions make different decisions regarding the legality of sports betting, it is critical that this Court not allow the unlawful approach taken by Florida to become a model, or for the D.C. Circuit decision to create confusing and misleading precedent. The Court should grant certiorari to ensure clarity in the law regarding the scope of IGRA and UIGEA, and to make clear that providing a statewide gambling monopoly to an Indian tribe while making the conduct a felony for all others is unconstitutional.”
Kavanaugh on Florida sports betting
Justice Brett Kavanaugh in October appeared to leave the door ajar for other arguments related to equal protection.
At the time, he wrote:
“To the extent that a separate Florida statue (as distinct as the compact) authorizes the Seminole Tribe — and only the Seminole Tribe — to conduct certain off-reservation gaming operations in Florida, the state law raises serious equal protection issues.
“But the state law’s constitutionality is not squarely presented in this application, and the Florida Supreme Court is in any event currently considering state-law issues related to the Tribe’s potential off-reservation gaming operations.”
Legal analysis on the petition
Gaming legal analyst John Holden provided more context surrounding West Flagler’s argument to LSR.
“Generally, this brief takes a couple of monster swings for the fences. It makes the argument we expected to see that IGRA does not permit mobile betting because it is not on ‘Indian lands.’ Then they continue making the UIGEA argument, which is likely related to the Desert Rose Bingo case, and trying to show a circuit split with DCA decision. The third argument however comes from Justice Kavanaugh’s comments, which they cite directly about Equal Protection,” Holden said.
“The first and third are monster swings at IGRA because they could unravel IGRA in its entirety. The second one continues to puzzle me, mainly because I don’t think it is especially strong, in comparison, and none of the lower courts have paid it significant attention. This is a fairly strong brief that contains most of what we expected. The biggest surprise is perhaps that the brief pushes the Equal Protection question down to the third question instead of the second.”
Florida sports betting case timeline
Indian Gaming legal analyst Joe Webster said at the National Council of Legislators from Gaming States (NCLGS) conference in Florida that if SCOTUS decides in the spring to hear the FL sports betting case, it would be decided some time in 2025.
SCOTUS hears only 70-80 cases annually, or fewer than 2% of the petitions it gets.
“While Justice Kavanaugh has already signaled interest in one of the underlying issues in the case, West Flagler’s chances of having its cert petition granted are slim,” Ryan Rodenberg, a professor at Florida State University, told LSR. “The Supreme Court may also view the cert petition as premature given the tethered proceeding currently pending at the Florida Supreme Court.”
Hard Rock CEO: We could still lose
Still, Hard Rock CEO Jim Allen acknowledged that the operator could end up getting shut down again.
“We could still lose, there’s no doubt about that,” Allen told Gaming Today. “The one thing I can tell you, we certainly talk to all of the major players in this space and it is unanimous. I do not have one of the other big companies that don’t believe in our legal position. Not one. Now that doesn’t mean a judge won’t rule against it.”
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