Lawyer: Florida Sports Betting Not Yet Permanent with Many Issues Unresolved, So Much at Stake

Last week ended with Florida Gov. Ron DeSantis asking the state Supreme Court to dismiss West Flagler Associates’ lawsuit seeking to shut down sports betting in the state again.

This week begins with the Seminole Tribe of Florida’s six in-state casino properties ready to begin launching retail sportsbook sportsbooks, craps and roulette.

On Tuesday morning, Hard Rock began accepting bets from new Florida customers, two days earlier than expected.

Florida sports bets

If the schedule holds for craps, roulette, and retail Florida sports betting, Seminole Hard Rock Hotel & Casino Hollywood, Seminole Classic Casino in Hollywood, and Seminole Casino Coconut Creek will open on Thursday and the Tampa property is on Friday.

The Hard Rock Bet app, which forms the contentious crux of West Flagler’s two years of litigation, has since Nov. 7 been accepting bets from Walnut Hill to Key West – cell signal willing – well off tribal lands and well afield of how the Indian Gaming Regulatory Act had previously been interpreted. West Flagler’s crystallizing legal approach has come down to the US and Florida Supreme Courts.

Its legal team was granted an extension until Feb. 4 to make its official petition for the US Supreme Court to take up the case. By then, West Flagler’s legal team asserted, the Florida high court might have helped re-establish some legal barriers to this paradigm-shifting mobile betting operation in a US District Court of Appeals panel unfettered with a June ruling.

Previously, Hard Rock only accepted bets in Florida from customers who made bets during the brief 2021 run of mobile sports betting in the state and members of a loyalty program. It’s slated to allow new customers to bet beginning Thursday.

It’s understood within the gambling industry that the final court decision, whatever year it will come, will have broad influence on tribal gaming in the United States. That’s always been the case with the Seminole Tribe of Florida. And clearly Hard Rock and Seminole leaders must feel confident to begin fully exploited the 30-year compact beginning this week.

Gaming Today spoke with lawyer and gambling industry observer Baird Fogel, a managing partner at Eversheds Sutherland, on Hard Rock’s Florida maneuvers and how they could reverberate from the Everglades to the desert southwest. (This interview was conducted before the news of Thursday’s full mobile launch.)

Tribal gaming change law

On Hard Rock Bet Launching to Pre-existing Customers on Nov. 7

“It’s a very bold move. It’s a very curious move. You can see very clearly there are clear constitutional issues at play here. I’m not saying what the Seminoles are doing is wrong or right. But this is a private industry. And if one group is allowed to take advantage of a capitalist market and sports betting, all groups should be able to.

And the fact that they can’t right now in the state of Florida, they can’t right now in the state of California is problematic for the tribe’s cause.”

On Why Hard Rock Only Re-opened Sports Betting to Existing Customers

“They’re mitigating against a really bad outcome. Because if they open it up to everybody, I think there has to be immediate action taken. I think that’s purposeful as well. That’s part of their strategy. ‘We’re doing this, but we’re not opening it up yet.’

[They] can still try to say, ‘We’re trying to wait for the proper ruling here.’ But they are letting non-previous users sign up for their waitlist. So they’re still expanding their customer base, so to speak, even though they’re not taking bets from them. They are actively promoting and marketing to new customers, which may not be viewed very favorably by the courts.”

On the Timing of the Florida and US Supreme Court Cases

“The problem is the online portion of this. Because nobody else can do it there, number one. Number two, counsel typically trend conservative because that’s the safest for your clients. You don’t want to risk damages and lawsuits and things like that. It is curious that they’ve decided to forge ahead without legal clarity.

“Because it it does invite risk, and as counsel, that would not be what I advise. There’s so many important rulings on the horizon here, and they’re not years from now. They’re in December. So what prompted this kind of rush back to the market? I don’t know, but it could turn out to influence the courts and the public as well.

‘We’re not really interested in what legal authority there is out there. We’re just pushing forward.’ I think that obviously there’s risk in that strategy.”

On Disgruntled Florida Sports Bettors if Hard Rock is Ordered Offline Again

“There’s not legal clarity that what they’re offering is lawful. … If I’m a customer and I’m being told that what they’re doing is legal, obviously, they’re up and running, and I’m betting and we find out it’s not legal, what claims do I have?

It just seems like you’re opening up an entirely new group of potential liability by forging ahead with the re-opening of the app without legal clarity or legal authority behind you to do so.

It’s just a really risky thing.

We live in a country where cities are shutting down lemonade stands by children because they’re not licensed and permitted. Just to draw the disparity here, we’re talking about a statewide – one of the largest and most profitable states in the United States – with potentially an unlawful gambling activity occurring statewide online. There’s a lot of potential for liability there.”

On How Florida’s Sports Betting Outcome Impacts California

“Florida’s very similar to California in that the tribes wield a lot of influence and power. They’re much more prominent in Florida and California than they are in a lot of other states. I don’t think you can have legalized sports betting in California without everybody coming to the table and coming up with a nuanced solution that involves everyone.

You can’t cut the tribes out any more than the tribes can cut out private industry. It’s just not going to go well. And both sides wield a lot of influence. So every time you put something on the ballot that favors one over the other, it’s probably not going to pass. You’re never going to get enough [votes]. So it’s never going to see the light of day here. And it’s a shame because this is the fifth-largest economy in the world, and the amount of revenue that is being missed out by non-legalized sports betting in California is astronomical. It needs to get figured out.”

Vastly Larger Amount of Tribes in Gambling Make California Difficult

“That’s right. It’s a much more comprehensive problem out here. So the solution’s going to be a lot more complex for sure. But it’s very similar in that the Seminoles wield a ton of power and influence in Florida, more so than any other tribe in any other state, except for the tribes stay in California.

There are other states that have these issues, but they’re not as powerful and influential as Florida and California. Even though we have more tribes here and the solution’s going to be a lot more complex, it’s still going to a similar solution. Both parties are going to have to agree to come to the table because I can’t see a court giving a federal tribe the right to operate sports betting outside of its lands when no one else in the state can legally operate a sports betting app there.

It’s contrary to the founding economic principles of the United States, which is against monopolies and [is] pro-capitalism and pro-customer choice and freedom. It’s very difficult to sustain that business model.”

On What the US Supreme Court Will Consider

“What the justices of both Supreme Courts must consider is the precedent-setting nature of this.  If this is allowed to proceed, you are opening up an entire can of worms in all these other states that don’t have legalized sports. But even in states that have legalized sports betting, the tribes might think of taking action. If there’s this complete departure from prior pacts with the tribes, and there’s this giant expansion of their constitutional rights to operate gaming outside of tribal lands, you’re going to invite a lot more litigation. A lot more potential issues might arise from this if they rule a certain way.”

About the Author
Brant James

Brant James

Lead Writer
Brant James is a lead writer who covers the sports betting industry and legislation at Gaming Today. An alum of the Tampa Bay Times, ESPN.com, espnW, SI.com, and USA Today, he's covered motorsports and the NHL as beats. He also once made a tail-hook landing on an aircraft carrier with Dale Earnhardt Jr. and rode to the top of Mt. Washington with Travis Pastrana. John Tortorella has yelled at him numerous times.

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