Lawyers for Miami-based parimutuel West Flagler and Associates late Friday filed a “motion to stay mandate” in federal court pending its plans to file an appeal in its case against the U.S. Department of the Interior to the U.S. Supreme Court. The motion to stay would prevent the Seminole Tribe from launching its Hard Rock Bet wagering platform in Florida next week. The motion was added to the court docket at 10:04 p.m. ET.
The request is the latest in a court case that was filed just short of two years ago and seeks to ultimately have the compact between the tribe and the state deemed invalid. The compact would allow the Seminoles to have a monopoly on retail and digital sports betting in the third-largest state in the nation, but it has been under fire since lawmakers approved it during a special session in May 2021.
Though the Seminoles have declined to comment on their plans to launch, the buzz throughout the industry this past week has been that the tribe would relaunch its platform at the first opportunity. The U.S. District Court of Appeals for the District of Columbia Circuit on Sept. 11 declined West Flagler’s request for an en banc hearing after overturning a lower-court ruling on June 30. The Sept. 11 denial started a seven-day clock before the mandate becomes effective, meaning that that the first available date to launch would be Tuesday.
In Friday’s filing, West Flagler attorneys called the June 30 ruling “unprecedented” and an “extreme shift in public policy on legalizing gaming” and went on to argue that without a stay, “the Tribe shortly will effect a major expansion of gaming in Florida by releasing a mobile phone application that will permit online sports betting throughout the state.”
Essentially, West Flagler is asking that the status quo — no digital sports betting — remain in place as it prepares to file a “writ of certiorari” (appeal) to the Supreme Court. West Flagler has 90 days from the date of the appellate court decision to file, and as of mid-afternoon Friday, the Supreme Court press office confirmed that no appeal had been filed.
So far, Seminoles (mostly) kept offline
Among the arguments that West Flagler has made in the case against DOI Secretary Deb Haaland are that she unlawfully allowed the compact to become deemed approved and that any expansion of gaming is required under Amendment 3 (2018) to go to the voters. A U.S. District Court judge in November 2021 found in favor of West Flagler, and demanded that the Seminoles take down their platform, which they had launched in November 2021 while the case was active at the district court level. The Seminoles took down the platform 34 days later after West Flagler appealed to the appellate court, which upheld that stay.
FLORIDA:
Future of sports betting in Sunshine State hangs in balance after Feds, Seminoles, and a pair of parimutuels state their cases at oral argument today.https://t.co/017OsDNuoj
— Sports Handle (@sports_handle) December 14, 2022
Here we are 22 months later, with the case still not resolved and, potentially, a long runway until it is, depending on how long it takes for West Flagler to file at the Supreme Court, and then for the court to decide whether or not it will hear the case.
West Flagler, which has argued that allowing the Seminoles to have a monopoly on digital betting in Florida will cause its businesses “Irreparable harm,” has thus far achieved a key goal: to keep the Seminoles from relaunching.
Wise to relaunch with more legal action ahead?
Should the appellate court decline to extend the stay, the Seminoles could launch next week. There are varying views on the merits of doing so, as it’s possible that the Supreme Court could later rule that the platform be taken down.
In the filing, West Flagler attorneys wrote, “Although the Supreme Court review could later result in the Tribe’s discontinuance of such gaming, the interim harm caused by the conduct of unlawful gaming in Florida against the wishes of Florida voters cannot be undone.”
There could also be some harm to the Seminoles and Hard Rock Bet if they launch for a second time only to get shut down again. Several sources suggested to Sports Handle this week that consumers could get frustrated by a platform that repeatedly launches and then becomes unavailable — and that, in turn, could send them to (or back to) the illegal market.
One counter argument is that if customers in Florida have only one sportsbook to bet with legally in a regulated market, the starts and stops allow bettors a taste of things to come with little downside.
West Flagler lawyers wrote that they will raise two “significant questions” to the Supreme Court:
- That the appellate court decision “significantly expands” the Indian Gaming Regulatory Act’s “scope” and could lead to “significant expansions of legalized betting throughout the country.”
- That the appellate court “analysis of the proprietary of the tribal preference granted by the compact departs from existing law regarding tribal preferences.”
It is expected that the appellate will act on the motion by the end of Monday, when the mandate is set to expire.
Whenever sports betting goes live, Florida would become the biggest state by population to have legal wagering. For now, New York is the biggest legal betting state.
