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Florida sports betting case will not be heard by US Supreme Court

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This is likely the end of the WSA case, as the Seminole Tribe will be able to continue offering its sports betting product in Florida, leaving the door closed to commercial operators.

On Monday morning (June 17), the U.S. Supreme Court rejected a request for judicial review of a decision in the Florida sports betting case brought by West Flagler and Assoc. (WFA).
The decision means that digital sports betting is still possible in Florida. From here, the WFA could once again try to pursue its case in the Florida state courts.

In March, the Florida Supreme Court said it would not hear the WFA's quo warranto offer because it was the wrong “vehicle” for the Florida sports betting case. The decision left the WFA free to refile the lawsuit in a lower Florida court.

The case was first heard in federal court in the second half of 2021. At the federal level, the WFA has now exhausted all options.

“The Seminole Tribe of Florida welcomes today's decision by the U.S. Supreme Court not to further review the case of the tribe's gaming agreement with the State of Florida,” tribal spokesman Gary Bitner said in a statement. “This means that Seminole Tribe members and all Florida residents can count on the bright future made possible by the agreement.”

One answer, but many more questions

Under the terms of the agreement, the Seminoles must pay the state of Florida $2.5 billion annually for the first five years of the 30-year contract.

The United States Supreme Court's (SCOTUS) decision not to hear the Florida sports betting case could also have broader implications as other tribes must decide how to apply it. The decision essentially leaves in place and affirms a compact that makes a hub-and-spoke model for betting acceptable.

The agreement also expands the boundaries of the Indian Gaming Regulatory Act (IGRA).

Language in the 2021 contract allows bets from anywhere in Florida to be considered placed in Indian Country when going through a tribal server, arguing that the IGRA never contemplated digital gambling and therefore cannot be applied to off-reservation bets.

“This may close one door, but it still leaves several doors that are already open and a ton of others that could still open,” BGlobal gaming consultant Brendan Bussmann told iGB. “If today was about finding answers, it just raises more questions, both about Florida and how this could impact tribal nations across the rest of the country.”

At least one judge supported the hearing of the case

According to the Supreme Court's statement, Justice Brett Kavanaugh would “consent” to the motion. Before filing the lawsuit, the WFA asked the Supreme Court for a stay to prevent the Seminoles from offering legal wagering.

When the court denied that request, Kavanaugh wrote that he agreed with his fellow justices “in light of the D.C. Circuit's statement that the treaty between Florida and the Seminole Tribe only permits the Tribe to operate gaming operations on the reservations, but not off them.”

However, he wrote, “If the treaty authorizes the tribe to conduct off-reservation gambling, either directly or by somehow treating off-reservation gambling as occurring on-reservation, then the treaty would likely violate the Indian Gaming Regulatory Act, as the district court explained.”

The U.S. Supreme Court could have granted certiorari for three reasons:

1. When a decision of a lower court conflicts with other federal decisions on the same issue;

  1. 2. If a decision of a lower court is inconsistent with a previous decision of the Supreme Court; or
  2. 3. When there is no solution to an important question of federal law.

WFA argued that the IGRA does not regulate betting outside of Indian Country. In its first SCOTUS brief, WFA cites the jurisdiction case Michigan v. Bay Mills Indian Community among other things, as an example of federal courts' interpretation that the IGRA's powers are limited to tribal areas.

The ruling by the U.S. Court of Appeals for the District of Columbia to keep the 2021 agreement in effect contradicts these decisions, the WFA wrote.

This is what the sports betting case in Florida is about

In filing the petition for review, the WFA asked the US Supreme Court to answer three questions:

  1. 1. Will the IGRA approve an agreement that would give the Seminoles a monopoly and allow them to offer online sports betting on and off tribal lands?
  2. 2. Does the 2021 contract violate the Unlawful Internet Gambling Enforcement Act?
  3. 3. Did U.S. Secretary of the Interior Deb Haaland “violate the principles of equal protection?” The WFA argues that Haaland agreed to a contract that gives the Seminoles a monopoly in a state where any other online sports betting operator would be breaking the law.

WFA attorney Hamish Hume wrote in his SCOTUS brief that when Haaland allowed the 2021 contract to be deemed approved, she used a “back door” to legalize an activity prohibited by the state constitution. He argued that his clients would “suffer competitive harm” if the Seminoles were allowed to continue offering digital wagering.

The tribe launched its Hard Rock Bet platform on November 7, 2023. It was the second time in two years that the Seminoles went live. The first was in November 2021, when U.S. District Judge Dabney Friedrich was still reviewing the case.

Friedrich ultimately ruled in favor of the WFA and ordered the tribe to close its platform. But it was not until the appeals court upheld Friedrich's order that the Seminoles closed the platform.

They remained offline while the U.S. Court of Appeals for the District of Columbia reviewed the case. A three-judge panel overturned the lower court's ruling in June 2023. But when that happened, Kavanaugh issued an opinion allowing WFA to file its case with the Florida Supreme Court.

He wrote that the contract “would likely violate the Indian Gaming Regulatory Act” and that state law allowing a Seminole monopoly “is likely to raise serious equal treatment issues.”

At the state level, different issues are being discussed

The questions are different from those asked at the state level. In its filing with the Florida Supreme Court, the WFA was able to address the content of the agreement. It also asked whether Gov. Ron DeSantis and the Legislature abused their power by approving the agreement.

In addition, there is the question of whether or not the state of Florida violated Amendment 3. The WFA argued in its brief to the Florida Supreme Court that any expansion of gambling must be left to the voters. That did not happen in this case.

The 2021 deal effectively prohibits commercial operators such as BetMGM, Caesars Sportsbook, DraftKings, Fanatics Sportsbook and FanDuel from doing business in Florida. To operate in Florida, any other commercial operator could partner with a parimutuel.

But the fees set out in the agreement are astronomical. There is also the possibility that other commercial operators would have to put their technology stack on a Seminole server for bets to be considered placed where they are received.

Under the agreement, state betting companies have the opportunity to enter into a partnership with the Seminoles. To do so, they would have to pay the tribe 60% of their revenue.

This “tax” is higher than the highest tax rate in the states that allow legal commercial sports betting. New Hampshire, New York and Rhode Island all charge operators a 50% tax rate.