A Florida attorney filed a brief with the U.S. Supreme Court supporting the two parimutuel gaming operators challenging the state’s gaming compact with the Seminole Tribe that gives them exclusive rights to online Florida sports betting statewide.
In a 32-page filing, Daniel Wallach urged the nation’s top court to either overturn a federal appeals court ruling that reinstated the compact or at least give lawyers representing West Flagler Associates and Bonita-Fort Myers Corp. a chance to argue their case.
Wallach, who teaches a sports betting law class at the University of Miami and also co-founded the University of New Hampshire School of Law’s Sports Wagering and Integrity online certificate program, offered his amicus brief in light of comments made by Supreme Court Justice Brett Kavanaugh in late October after the court declined to grant the plaintiffs’ request to block the tribe’s Hard Rock Bet Florida from resuming operations across the Sunshine State.
Kavanaugh wrote in a note published with the Oct. 25 decision that if the 30-year compact did give the Seminoles the right to conduct gaming beyond tribal lands, then it would likely violate the Indian Gaming Regulatory Act.
“Justice Kavanaugh has already identified the key issue in this case,” Wallach wrote.
About The Florida Sports Betting Case
The crux of the federal case is that West Flagler and Bonita-Fort Myers contend the U.S. Department of the Interior should not have approved the 2021 compact because of the language giving the Seminole Tribe statewide Florida sports betting rights. They claim the state gave the tribe permission to offer a product that they cannot provide and stand to lose business as a result. Their only way to participate would be as part of a Seminole-led network, with the tribe getting a 40% cut of the revenue.
Proponents counter that it’s legal since the servers processing the wagers are located on tribal land, regardless of whether the bettor was their phone or laptop in Key West, Pensacola, or anywhere in between.
West Flagler and Bonita-Fort Myers are suing the Interior Department and Interior Secretary Deb Haaland. The plaintiffs won at the federal district court level when U.S. District Judge Dabney Friedrich threw out the compact in November 2021. The U.S. Circuit Court of Appeals for the District of Columbia overturned that decision last June.
Besides the federal case, the plaintiffs have also filed a lawsuit against Florida Gov. Ron DeSantis and other state leaders in the state Supreme Court. In fact, the parimutuel operators were granted a two-month delay in filing their brief with the federal Supreme Court in hopes state justices would render a decision. That has yet to happen.
West Flagler and Bonita-Fort Myers filed their argument with the U.S. Supreme Court on February 8. The response from the Interior Department is due March 13.
What Does IGRA Allow?
Wallach’s brief focused on IGRA, the 1988 federal law that permitted tribes to conduct gaming on their sovereign lands, and he criticized the appeals court for how it viewed the law.
“The D.C. Circuit’s strained interpretation of IGRA as allowing for compacted tribal gaming activities outside of Indian lands is fundamentally at odds with IGRA’s plain language, the compact’s clear terms,” he wrote.
The Florida sports betting case comes as the Interior Department’s Bureau of Indian Affairs has looked at updating its rules on what tribal gaming and compacts should include. Late last week, the federal government agency released its final rule, which includes language that’s “consistent with the holding of” its interpretation of the Seminole gaming compact.
Those rules are expected to take effect next month, although in his filing Monday, Wallach said those rules will likely face legal challenges, making this case even more important on a national level.
“Indeed, numerous state and local governments (including the attorney generals of 20 states) and gaming industry stakeholders have submitted public comments in opposition to the proposed rule, arguing… that it would overstep the BIA’s statutory authority by disregarding the requirement that gaming conducted under IGRA must occur on tribal lands. These objectors are the likely plaintiffs in any future federal court challenges under the Administrative Procedure Act, thereby ensuring that the question of IGRA’s applicability to off-reservation tribal gaming persists beyond the current litigation.”
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