Florida’s Seminole Tribe once again finds itself in a situation where it is legal to launch the Hard Rock Bet sports betting platform, but at least one lawyer familiar with the case says it is unlikely the tribe will do so.
The U.S. Supreme Court late Wednesday afternoon denied West Flagler and Associates’ (WFA) request to stay a lower-court ruling, which means that in the eyes of federal law, the Seminoles are free to move forward with their platform. The denial, though, doesn’t preclude WFA, which owns two Florida parimutuels, from filing for a stay to keep the Seminoles offline in the Florida Supreme Court, nor does it mean that the cases that will decide the future of legal Florida sports betting have been decided.
“The denial of the stay by the U.S. Supreme Court is very good news,” a Seminole spokesman told Sports Handle via email. “The Seminole Tribe of Florida is heartened by this decision.”
West Flagler and Associates has publicly said that it plans to appeal its case against the U.S. Department of the Interior (DOI) by Nov. 20, and a case in the Florida Supreme Court is in a holding pattern until Dec. 1, the deadline set for Gov. Ron DeSantis and the legislature to respond.
“As I have been saying for some time, it’s all over but the shouting on the federal level,” Nova Southeastern constitutional law professor Bob Jarvis told Sports Handle. “The action now is at the state level, where the Florida Supreme Court will have to decide if it wants the case or wants to send it down to the Leon County circuit court. Either way, we won’t see sports betting in Florida for some time yet, but it will come eventually.”
Decision an indicator court isn’t interested?
The denial could also be a hint as to what is to come on the federal level, where a U.S. district court in November 2021 sided with West Flagler and a U.S. appellate court in June 2023 sided with the DOI. The key to the federal case is whether or not DOI Secretary Deb Haaland was within her rights to allow the 2021 compact between the Seminoles and the state of Florida to become approved. Haaland did not sign the compact, but rather, let 45 days pass before it became “deemed approved.”
Florida lawyer Darren Heitner of Heitner Legal told Sports Handle that the denial means that “it should not be long before Florida citizens are able to easily place bets on the Hard Rock Bet mobile application.”
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But more importantly, he says the denial is a tell.
“By not issuing a stay, SCOTUS has signaled that it is unlikely to take the case and/or reverse the underlying decision,” he said.
JUST IN: The Supreme Court just denied a stay in the Florida sports betting case.
Wagering on the @HardRockBet app will be coming very soon. pic.twitter.com/lxUFMKW4GD
— Andy Slater (@AndySlater) October 25, 2023
Supremes offer fodder for state-level case
Wednesday’s denial raises important questions surrounding the Indian Gaming Regulatory Act. Justice Brett Kavanaugh wrote in a statement that he agrees with the denial “in light of the D.C. Circuit’s pronouncement that the compact between Florida and the Seminole Tribe authorizes the Tribe to conduct only on-reservation gaming operations, and not off-reservation gaming operations.”
But in considering all views of the compact, Kavanaugh also wrote, “If the compact authorized the Tribe to conduct off-reservation gaming operations, either directly or by deeming off-reservation gaming operations to somehow be on-reservation, then the compact would likely violate the Indian Gaming Regulatory Act, as the District Court explained.”
The compact does, in fact, allow for any bet placed anywhere in the state of Florida to be considered to have been placed in Indian Country if the bet flows through a server on tribal land. Florida’s legislature approved the compact in a May 2021 special session. But the federal courts do not govern what is in the compact, nor do they have a say in state law.
Kavanaugh also calls into question equal protection issues, citing the Florida law that gives the Seminoles a monopoly, and also writes, “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.”
It would appear likely that WFA will file for a stay to keep the Seminoles from launching with the Florida Supreme Court sooner rather than later. When they filed a motion in Florida Supreme Court last week, WFA lawyers wrote that while they did not initially seek “emergency relief” to keep the Seminoles offline, they would if the case were to drag on.
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