Sports betting in Florida is likely dead for at least two years.
That’s the take from a prominent expert who said the glacial pace at which legal cases related to the issue are being advanced doesn’t give bettors much hope of things changing any time soon.
“This isn’t an episode of Ally McBeal where the client walks into the fictional office of Cage & Fish and Ally McBeal saves the day with a dramatic courtroom argument on that very same day,” Daniel Wallach, an attorney who specializes in gambling issues, told Gaming Today during a recent one-hour phone interview.
“Only on TV do cases get wrapped up in that amount of time,” he said.
“In the real world, litigation outcomes take several years to achieve.”
The latest hiccup in the litigation: the Department of Justice late Tuesday asked the D.C. Circuit Court to stay – or in layman’s terms, pause – all filing deadlines related to the key West Flagler v Haaland et al case until it clarifies its ruling in the related Monterra v. Haaland case.
JUST IN: The DOJ seeks to have all appellate deadlines in the Florida sports betting tribal compact case “held in abeyance” (stayed) until the DC district court clarifies its ruling as to the non-West Flagler plaintiffs. Resolution of the issue will further delay the main appeal. pic.twitter.com/6d720ZlQs5
— Daniel Wallach (@WALLACHLEGAL) March 23, 2022
“In all likelihood, this legal question will not end in 2023 but could carry over until 2024,” Wallach said.
Legal Issues Cause Headaches For Sports Betting
Let’s review how Florida sports betting proponents found themselves in this situation.
For much of early 2021, Florida lawmakers and Governor Ron DeSantis worked behind the scenes to secure a new gaming compact with the Seminole Tribe of Florida. The approved compact, signed by DeSantis in May 2021, gave the Seminoles exclusive rights to sports betting through a “hub and spoke” model set-up. This format said that servers placed on tribal property would process all sports bets placed within the state of Florida.
But the Florida compact, just like all tribal compacts, required approval from the Department of the Interior, as stipulated in the Indian Gaming Regulatory Act. In August, Secretary of Interior Deb Haaland – a member of the Laguna Pueblo and the first Native American to serve in a presidential cabinet, approved the compact.
Her approval, however, did not sway or stop opponents who argue, among other things, the compact violates IGRA as well as state law, and damages their businesses.
Sports betting was actually up and operational in Florida for about a month, but Hard Rock shut down its app on Dec. 4 amid the legal tussling.
At least two separate appeals have been filed and are working their way through the courts. The first, brought by Florida businessmen, is the Monterra case. The second case, brought on by two small pari-mutuel companies in the state, is the West Flagler case.
The Monterra businessmen have asked the court for permission to sign on to the West Flagler case as an amicus party.
The federal appeals court has questioned whether the Monterra aspect of the case is properly the subject of an appeal. It is this issue that is holding up the progress of the related appeal, as the court has delayed issuing a briefing schedule on the main appeal until the collateral issue can be resolved.
The DOJ wants action on the West Flagler case postponed until a ruling on whether Monterra can sign on is rendered.
It is the West Flagler case, however, that is the prominent case looking at the legality of the compact. And until the court(s) decide that one, there can’t be any sports betting in Florida under the existing rules.
“These intermittent delays — and it’s already been four months without so much as a briefing schedule being issued by the court — all but assures that this appeal won’t be decided until 2023 at the earliest,” Wallach said. “And this could potentially drag on until 2024 if this matter is pursued by the losing party at the U.S. Supreme Court (and it likely will be no matter the result).”
Mixed Messages On Floridian Support
In late January, backers of a petition drive to bring the question of sports betting before the voters in November admitted they were going to fall short of the required signatures. Florida law required 891,589 valid signatures by Feb. 1, and as January 28, the group had just 477,112, according to the Florida Division of Elections website.
“While pursuing our mission to add sports betting to the ballot we ran into some serious challenges, but most of all the COVID surge decimated our operations and ability to collect in-person signatures,” said Christina Johnson, spokesperson for Florida Education Champions, the umbrella group backing the effort.
The following month, however, the University of North Florida released a poll indicating wide-scale support for sports betting in the state.
The poll asked whether voters supported legalized sports betting in two different ways. The first question was worded not indicating where revenue would go, and it garnered 50% support compared to 35% opposed. The second question was asked indicating revenue would go toward education, and support jumped to 60%.
Michael Binder, director of the Public Opinion Research Lab at the school, said support for an issue doesn’t always translate to signature-gathering. A petition drive requires a tremendous undertaking and costs a significant amount of resource allocation. Not to mention, voters have to be motivated on the issue. And in Florida, sports betting is not a key priority, he said.
“I don’t know that passion is the right word to describe support for sports betting. Among the general public there is a whole lot more going on,” Binder told Gaming Today, noting immigration, education, COVID, and state redistricting are all big issues facing the Sunshine State.
Advocates have not given up though on a sports betting referendum, albeit 2024 now the earliest possible time.
During a recent call with investors, DraftKings CEO Jason Robins said the company is hopeful regarding future efforts.
“We are very encouraged …. by the over 1 million individuals who signed petitions in less than eight months, which shows that Floridians do want the opportunity to vote on a competitive mobile sports betting market in the state.” he said.
“We are exploring all options to ensure that Floridians get that opportunity as soon as possible. And if we were to refile, we are very confident that, given the extended time frame, we will be able to qualify for the 2024 ballot.”
Quicker Road To Sports Betting Exists
The issue of sports betting could all be resolved tomorrow. Actually, like in the Wizard of Oz, a resolution has existed all along.
The hold-up is the will of the legislature, the governor, and the Seminole tribe to go back to the drawing board.
This is an election year. And the 2022 Florida legislative session came and went without addressing sports betting, focusing instead on issues that more widely appeal to voters.
“[Lawmakers] made a calculated decision to stick with the appeal,” said Wallach. “It’s an election year and it would have been tantamount to Gov. DeSantis admitting he made a mistake [if they wrote a new compact.]”
Binder said the fact the issue was not addressed also illustrates how little most Floridians care about sports betting.
“There is a lot of stuff to do in a part-time legislature and gaming would have taken up a lot of time and energy,” he said.
The fact they didn’t address it “highlights where this falls on the priority list with regards to the priority of sports betting.”