West Flagler Associates’ writ of certiorari asking the United States Supreme Court to take up its fight against the current state of sports betting in Florida is generating as much debate as … the current state of sports betting in Florida.
There are some, like veteran tribal gaming lawyer Derril B. Jordan, who believe the 30-year compact the Seminole Tribe garnered in 2021 – then reinstated in 2023 after a court-ordered shutdown of more than a year – is perfectly within the parameters of the Indian Gaming Regulatory Act of 1988. And he thinks the text of the writ was ultimately self-defeating, admitting that the case should be settled by an ongoing Florida Supreme Court case.
Florida-based gaming attorney Daniel Wallach submitted a brief to the US high court supporting West Flagler’s position, calling into question the controversial “hub-and-spoke” model that is currently allowing the Seminoles to become the first tribe in the US to accept mobile bets off tribal lands without the state where that property resides having broadly legalized the business. Hard Rock Bet servers handling the bets are located on Seminole tribal property.
Baird Fogel, a California-based partner at Eversheds Sutherland with extensive experience with tribal contracts, agrees that there are enough points left unsettled in the Florida situation to interest the Supreme Court.
Gaming Today spoke with Fogel about why West Flagler could interest the Supreme Court and the ramifications of taking up the case or letting the status quo continue.
GAMING TODAY: What’s your assessment of the West Flagler Associates writ of certiorari?
BAIRD FOGEL: I believe West Flagler makes some compelling arguments here and the writ has a reasonable chance of being granted.
Two main issues are raised with the new compact in Florida. First, IGRA grants the tribes the right to conduct gaming activities on tribal lands. The new deal in Florida will obviously allow a user to engage in sports betting anywhere in the state.
That seems to introduce a conflict that may be ripe for judicial review. Much will depend on a determination of what constitutes tribal “lands.”
In the past, to be considered tribal lands, the “land” must maintain status as a reservation, trust or some kind of land over which the tribes exert jurisdiction.
Second, as it stands, the current Florida agreement will allow for only the Seminole tribe to offer sports betting in Florida – which seemingly operates as a grant of exclusivity.
There may be another issue here requiring some kind of judicial review.
IGRA does not grant exclusivity regarding gaming activities – or sports betting – to the tribes.
There is some precedent for this arrangement – like in Connecticut- where the only three sports betting licenses granted all have tribal partners. But even in that state, DraftKings, FanDuel and the Connecticut Lottery were able to partner with the tribes and establish some form of competition and optionality for the consumer.
West Flagler makes some compelling arguments here.
Number one, if you look at the district court’s ruling, it only talked about sports betting on tribal lands. It did not talk about sports betting outside of tribal lands, which is now happening because of the online capability of sports betting through the Hard Rock app. So that’s a problem.
Remember, when the Supreme Court originally rejected the request to place a hold on the D.C. Circuit’s ruling certifying the Florida compact, it did so in a limited manner. The court stated that the compact only authorized gambling on tribal lands.
In fact, Justice Brett Kavanagh went on to note that if the Florida agreement authorized gambling elsewhere in Florida, it would “likely violate” the IGRA. He went on to add that if that did happen, and other operators could not do the same, it would pose “serious” constitutional questions.
Because the compact now allows the tribe to conduct sports betting across the state through the use of the Hard Rock app, the Supreme Court may find reason to revisit the compact.
And then Kavanaugh goes on to say in their denial that if somehow gambling started to occur elsewhere in the state, meaning outside tribal lands, would “likely violate” IGRA.
Obviously, these things are difficult to predict but based on some of the language used in the prior ruling, the West Flagler writ has a reasonable chance of being granted.
And I have to say, it seems like a difficult argument to get around given the court’s prior statements.
READ MORE: Fogel on the Seminoles’ Florida Supreme Court legal case
GT: What about those who say IGRA should be allowed to expand with modern technology and opportunity?
FOGEL:
Sports betting has long been a wire business. Even though the concept of wireless is new, the idea of being able to place a bet remotely has long been accepted (especially in horse racing).
Sportsbooks have long existed in numerous countries around the world. The ability to phone in or place electronic bets of some kind is not novel.
I think the fact that previous regulation has included the ability to wire a bet or to phone in a bet is no different than placing a bet from an app. I would argue that current regulations contemplate this capability.
The technology argument is a good one- but it may not be enough to overcome the tribal lands issue. It’s difficult to satisfy the “tribal lands” requirement when you are sitting in Orlando at a Magic game and placing a bet on the app.
GT: Does the Seminole Tribe virtual gambling monopoly in Florida factor?
FOGEL: Well clearly, under the current compact, no other operator is allowed to conduct sports betting in the state.
That poses a serious issue- as the court previously indicated- if the tribe can conduct sports betting outside tribal lands, and other operators could not do the same, it would pose “serious” constitutional questions.
There is nothing currently in the IGRA granting exclusivity to the tribes with respect to gambling activities or sports betting.
GT: Would a California tribe have been able to get a deal like the Seminole Tribe of Florida?
FOGEL: It would be very difficult. Florida was able to reach a compact because they are essentially dealing with a single tribe.
In California, there are so many competing tribes with substantial casino interests. It would nearly be impossible to be able to formulate a singular agreement with a number that large.
However, the tribes in California have been somewhat unified in making sure they participate in whatever legislation results for sports betting in California (where it is still not lawful).
GT: Do you think the US Supreme Court will take us the case?
FOGEL: Again, I believe West Flagler makes some compelling arguments here and the writ has a reasonable chance of being granted.
Because the compact now allows the tribe to conduct sports betting across the state through the use of the Hard Rock app, the Supreme Court may find reason to revisit the compact.
The thing that is most revealing here is the prior statement issued by the court, “… if the compact allowed for sports betting outside tribal lands, and no other operator could do the same, it would pose constitutional issues.”
Maybe that’s enough to compel them to reconsider – or at least revisit- the prior ruling.
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Portions of the interview have been edited for style and clarity.
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