Barring something highly unusual, a court appeal by a pair of Florida parimutuels means that the Seminole Tribe won’t be able to launch its Hard Rock Bet platform in the state ahead of the 2023 NFL season.
West Flagler and Associates Monday petitioned the U.S. Court of Appeals for the District of Columbia Circuit for an en banc hearing following a three-judge panel’s June 30 decision in favor of the U.S. Department of the Interior (DOI).
To cut through all the legalese, the appeals court in June overturned a federal judge’s decision that had prevented operation of the Seminoles’ digital sports betting platform. Had West Flagler and Associates not appealed that decision, the tribe, which owns Hard Rock Bet and has a compact with the state giving it a monopoly on sports betting in Florida, would have been free to go live with its platform later this month. Instead, the case, first filed in 2021, continues winding its way through court reviews.
Monday was the deadline for West Flagler and Associates to appeal, though the June 30 decision enabling sports betting would not have taken effect until Aug. 21. A court stay that prevents the Seminoles from launching now remains in place, meaning Floridians likely won’t be betting from their phones when the NFL season kicks off Sept. 7.
In June, a three-justice panel voted 3-0 to overturn a U.S. District Court decision in favor of the plaintiffs who oppose the compact between the tribe and Florida. West Flagler is now requesting that all 11 judges on the court hear the case. According to the court handbook, such requests are “rarely granted.”
Still plenty of options
There are now questions around the timing of when the appellate court will decide about rehearing the case and, if it decides to do so, how long that will take. There’s also the question of what West Flagler and Associates’ next move will be should the court decline to rehear the case.
The court handbook does not lay out a specific timeline for the court to act on an en banc rehearing petition. The court could potentially ask the DOI for a response to the petition, or it could announce that it is or is not granting the rehearing without a response to DOI.
The decision on whether or not to hear a case is made by electronic vote. The clerk’s office sends out an electronic vote sheet to all justices, and if one calls for a vote, a vote is taken. If none call for a vote, then the clerk denies the petition. No timeline is outlined in the handbook, but it does call for a “timely” vote.
The attorney for West Flagler did not reply to inquiries from Sports Handle, while a Seminole representative shared the following statement: “It’s important to note the three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit issued a unanimous decision in favor of the U.S. Department of the Interior, which approved the Gaming Compact between the Seminole Tribe and the State of Florida.”
West Flagler still has cards to play. Should the appellate court reject the rehearing request, the parimutuels could file in either the U.S. Supreme Court or a state court. In either case, the filing would likely include a request for another stay to keep the Seminoles from launching.
Rehearing May Be Sought In #Florida Sports Betting Case, But SCOTUS Is Better Vehicle For Changed Outcomehttps://t.co/CUd2Zk4sf2
by @WALLACHLEGAL via @Forbes— Jim Rosica (@JimRosicaFL) August 14, 2023
Did DOI have right to grant a monopoly?
At the heart of Monday’s filing, West Flagler attorney Hamish Hume questioned whether Department of the Interior Secretary Deb Haaland had the right to grant a compact that gives the Seminoles a monopoly, which the filing contended violates the Equal Protection Clause of the U.S. Constitution. Hume went on to argue that the decision departs from prior case law and is “erroneous and will create confusion.”
At the district court level, Judge Dabney Friedrich in November 2021 found that Haaland was essentially out of bounds in approving the Florida-Seminole compact. Haaland did not sign the compact, but rather let a 45-day window expire after which the compact was considered approved.
The 2021 compact gives the Seminoles a monopoly and allows for digital betting throughout the state by deeming that any bet that runs through a server on Seminole land should be considered to have been made on Seminole land. The DOI appealed Friedrich’s decision, resulting in the reversal in the government’s favor.
Bob Jarvis, a constitutional law professor at NOVA Southeastern University, told Sports Handle he believes that the Equal Protection Clause cannot be used as a reason for a rehearing, and that “the only issue before the district court was whether Secretary Haaland’s non-decision violated the (Administrative Procedures Act). Judge Friedrich found it did; the panel found it did not. Once again, WFA wants to litigate the compact itself, but the panel made it clear it was not ruling on the compact, but only Secretary Haaland’s non-decision.”
Under the terms of the compact, the Seminoles would be operating statewide digital sports betting under a hub-and-spoke model, which does not exist anywhere else in the U.S. The tribe would pay the state $2.5 billion over the first five years of the compact, and potentially more after that time frame.
At this point, West Flagler attorney Hume is arguing against Haaland having the power to approve a compact for gaming off tribal land or that “grants a monopoly.”
While potentially not the issue before the court, Hume wrote that the “net effect of the Opinion is that a tribe and state may now contract to give a tribe a statewide monopoly on gaming off of Indian lands as long as some of the gaming also occurs on one square foot of Indian land.” He goes on to call the compact a “ruse” and an “abuse of IGRA,” and also argues that the compact attempts to circumvent the Florida’s Amendment 3, which requires that any expansion of gaming be decided by the state’s voters.
