When a group of lawyers stood before federal court Judge Dabney Friedrich Friday morning to argue a case in which two parimutuels claim the Florida-Seminole Tribe gaming compact is illegal, only one side was prepared. And it wasn’t the side that represented the U.S. Department of the Interior. In fact, Friedrich spent nearly 45 minutes jousting with a government attorney who ultimately said she wasn’t ready to argue the merits of the case.
“It’s hard to sit here and think the government’s whole litigation strategy is to delay,” Friedrich said.
Earlier this year, West Flagler Associations (Magic City Casino) and Bonita-Fort Meyers Corp. (Bonita Springs Poker Room) filed a pair of lawsuits in U.S. District Court asking for an injunction against the start of sports betting in Florida and for the compact to essentially be deemed illegal. A judge in the North Florida District last month threw out one suit, saying the parimutuels don’t have standing in the case, but the suit that most thought had the best chance of success was heard Friday in U.S. District Court in the District of Columbia.
The hearing was available via teleconference, but was at times to difficult to hear with some people leaving open mics that picked up dogs barking, domestic conversations, and the pinging of an open car door.
But it went something like this:
Federal lawyer: We don’t believe you should consider the merits of this case.
Friedrich: I don’t understand how you think you are complying with this order. Let’s say the court does consider the merits of this case. … Your position is that today’s hearing is only to dismiss, and if I refuse, then the government should have more time to respond?
Or, later in the proceedings:
Friedrich: Does the government interpret that betting is happening solely on Indian lands?
Federal lawyer: I, uh just … I can’t say I am prepared to answer.
Friedrich: Yes or no? Just answer that.
No answers not a good look
In the end, government lawyers had no argument, and Friedrich granted them until Nov. 9 to file a brief explaining their position on the merits of the case, rather than just asking for it to be dismissed.
The additional time likely won’t change the timing of a decision — Friedrich said she would adhere to the initial timeline of sharing a decision by Nov. 15. That date, according to the plaintiffs, is when wagering was supposed to go live in Florida, but the Seminoles launched statewide mobile wagering Monday. The parimutuels argued that a representative from the tribe had pointed to a Nov. 15 start date, thus their request for a decision by that date. But the tribe says it never targeted a certain date.
I certainly hope we eventually get a robust competitive sports betting market in Florida…with that said the @HardRockSB offering by the Seminoles looks rather robust at first glance. Definitely a clean UI. pic.twitter.com/DHrFGNLK7i
— Dan Back (@dan_back) November 1, 2021
The hearing lasted about 90 minutes. After Friedrich called out government lawyers, the plaintiffs had some time to argue their case. At the core of it is what’s allowed in the Indian Gaming Regulatory Act and that the latest compact should be thrown out.
“You want the whole compact thrown out?” Friedrich asked.
“Yes, it’s clear and unequivocal that the most important items in it are illegal. They can write a new compact,” responded a lawyer for the Bonita Springs Poker Room.
But the key question that Friedrich must first rule on is whether or not the parimutuels have standing to sue in the first place. Several law professors told Sports Handle that they likely do not, as the parimutuels sued the state of Florida and the federal government, both of whom are bound by law to negotiate a compact and approve or reject it, respectively.
Wagering not legal in Florida
But Friedrich seemed prepared to consider and explore the merits of the case, or at least not outright reject it on Friday. But she heard only one side, given that the federal lawyers were unprepared. Among other arguments, the lawyers contend that because sports betting is not explicitly legal in the state of Florida, the Seminoles — even if the state agreed — cannot offer it.
The plaintiffs’ lawyers said the “secretary [of the interior] must be directed to dismiss” the compact, and that “you can’t use a back-door argument to make sports betting legal in the state. … The secretary failed to follow a clear mandate that you can’t [offer statewide sports betting] unless it is clearly legal in the state.”
Handle at one of the West Flagler pari-mutuel facilities was down 35% yesterday per the plaintiffs' attorney.
Online sports betting went live in Florida on Monday
— Steve Bittenbender (@CasinoOrgSteveB) November 5, 2021
They went on to discuss already declining handle and Amendment 3, which passed in 2018 and requires that any expansion of gaming go to the voters. The compact and the legislature’s approval of that compact in May did not go to the voters.
“Everything is based on this being on Indian lands,” the lawyers said. “There are millions of people nowhere near Indian land who are able to place bets in Florida. This would be a felony for anyone else. … This is an end around the people. IGRA is being abused.”
Whether Friedrich agrees or not is yet to be seen.