The Department of the Interior called the request by West Flagler Associates to prevent the Seminole Tribe of Florida from re-launching sports betting in the state as it readied a Supreme Court appeal “not warranted,” in documents filed on Monday in the US Court of Appeals, District of Columbia Circuit.
DOI, which was sued by West Flagler and another Florida parimutuel outlet for allowing the Seminoles’ 30-year gambling compact to pass into law in 2021, was ordered by the court to respond by today to a stay request made on Sept. 15. That day, attorneys for West Flagler and the Bonita Springs Poker Room petitioned the Appeals Court to prevent the Seminoles from re-launching sports betting as it prepared to ask the Supreme Court to take up the case. They must submit that request by Dec. 10.
West Flagler had won a string of court victories until a three-judge panel in late June reversed an earlier ruling by Judge Dabney Friedrich voiding the compact. West Flagler subsequently failed to secure a re-hearing before most of the court.
DOI asserted today: "Any such petition could present no substantial question for Supreme Court review. This Court reached a narrow, case-specific holding about the meaning of particular language in one particular Compact under the Indian Gaming Regulatory Act."
Added DOI in the court filing:
"West Flagler has not met its burden. There is no reasonable probability that the Supreme Court would grant certiorari in this case and reverse this Court’s decision. The Supreme Court grants petitions for certiorari “only for compelling reasons.” Sup. Ct. R. 10. With respect to decisions of federal courts of appeal, Rule 10 sets out the limited and exceptional grounds for granting a petition, including that the lower court “has entered a decision in conflict with the decision of another United States court of appeals on the same important matter” or “has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.”
It remains unclear when the court will rule on the stay request.
Florida sports betting reached a state of near-euphoria anticipating a launch of legal wagering in time for Week 2 of the NFL season.
Daily Fantasy Fight Taken Up by Florida Regulators
Daily fantasy sports apps have operated in Florida for years because state laws are vague in addressing their legality. Language to legalize DFS was discussed as part of the process of approving the 2021 Compact between the state and the Seminoles. Last week, the Florida Gaming Control Commission took a stance, informing Betr, PrizePicks, and Underdog Sports on Tuesday that they may be accepting "illegal bets or wagers from Florida residents," and ordered them to stop. The news was first reported by Florida Regulatory Watch.
We received a letter from the Florida Gaming Commission alleging that our contests violate FL law. They are saying that all paid fantasy violates FL law in their view, including our season-long, daily drafts, and Pick’em games. Here’s the correspondence. pic.twitter.com/KwK37QQy92
— Jeremy Levine (@JerLevine) September 22, 2023
The Florida action is part of a growing national trend where state regulators are attempting to control the margins where DFS outlets operate. Offerings on these national DFS apps can often resemble sports betting parlays where game scores aren't considered but the combined performance of individual players is available for real-money play. Most states pushing back already have legal sports betting, like New York, Michigan, and Ohio.
“We disagree on the merits, and will be working with the commission and potentially the legislature so we can ensure Florida sports fans can continue to play,” John Lockwood, a Florida attorney representing Underdog and other DFS companies in the state said in an email to Gaming Today.
FanDuel and DraftKings were not warned.
The legality of these types of contests is broadly contested among the law community in and observing Florida. Law professor Marc Edelman Tweeted that he believes the apps are not legal. But Florida attorney Darren Heitner does.
True, a 1991 advisory opinion issued by then-Attorney General Robert Butterworth stated wagering on a person’s performance in games or contests of skill constitutes gambling under Florida law pursuant to Fla. Sta. § 849.14.
— Darren Heitner (@DarrenHeitner) September 22, 2023