The Department of the Interior will prevail in bringing legal sports betting back to Florida when the controversial compact agreed to in 2020 with the Seminole Tribe is finally disgorged by the federal court system.
So says a gambling industry lobbyist.
Whatever the outcome, possibly years from now, the Seminoles’ Hard Rock Digital app should never have been shut down in the first place.
So says a former Bureau of Indian Affairs attorney and a longtime tribal law observer.
“I believe that Gov. DeSantis and the Seminoles will ultimately prevail,” Bill Pascrell III, a lobbyist with PPAG–Princeton Public Affairs Group, told Gaming Today. “I am a bit of a betting man, and I would always double down with [Seminole Gaming chief executive officer] Jim Allen, Gov. DeSantis and the Seminoles.
“I’m a lawyer and I believe in their legal arguments. I’m not saying this is going to happen easily, but I think they have a good plan and I’m looking forward to seeing it unfold. And I think it will successfully.”
Derril Jordan, an attorney at mctlaw who has served as in-house counsel for three Native American tribes believes that US District Court Judge Dabney L. Friedrich erred in voiding the compact, which would have allowed the Seminoles through their Hard Rock Digital brand, to offer state-wide mobile sports betting. The judge deemed the so-called “hub-and-spoke” mobile betting option that would have kept betting servers on tribal land while accepting bets off of them a “legal fiction” and beyond the scope of the Indian Gaming Regulatory Act.
Jordan counters that a law written six years before the commercialization of the Internet cannot adequately account for advances in gambling technology. He contends that tribal compacts should be given leeway in capitalizing on these advances. This argument was also made in the DOI opinion of the compact, although the department allowed it to pass into law without rendering official approval.
“If you look at IGRA and you interpret IGRA, it’s ambiguous and you use the canons of construction that are applicable in Indian law, that ambiguities must be interpreted in favor of the tribes and so forth,” Jordan told Gaming Today. “I don’t think it’s a far stretch to say IGRA allows this to take place.”
Oral arguments are set to begin in the US Court of Appeals, DC Circuit on Dec. 14.
Florida Sports Betting Litigation has National Importance
In shutting down sports betting in Florida after a one-month run last November, Friedrich applied precedent in asserting that a mobile sports bet occurs at the location of the mobile device, not the server that facilitates it. That is an incorrect interpretation, Jordan said.
“Because at least part of the gaming is on tribal land, and the state and the tribe have agreed that this is permissible conduct, the tribe isn’t doing it unilaterally without the state’s participation. Therefore, this is legal,” he said. “It’s permissible under IGRA. You interpret IGRA to be flexible.”
The Florida Legislature approved the compact before it began a 45-day period of consideration that DOI allowed to expire. A group of Florida pari-mutuels led by West Flager Associates sued to shut down the pact and is supported by a group opposing any further expansion of gambling in the state.
“You interpret it so that ambiguities in the law are construed in favor of the tribes, not against them,” Jordan continued. “That’s the only way to make IGRA a living, breathing statute that doesn’t have to be amended. If you say to go ahead and amend it from the tribal perspective, that’s much easier said than done. And when folks like West Flagler say that tongue in cheek, they know that.”
A former Florida legislator warned this summer that a Supreme Court ruling in a non-gambling-related case could have dire consequences for tribal sovereignty, and Jordan sees this case in federal court as another ominous prospect.
The remedy, he said, was much closer to home.
“I don’t know why they don’t sue the State of Florida or sue the governor and other state officials in a Florida court,” he pondered. “Argue that the statute violates state law. I don’t have an opinion about that. I don’t care about that. I’m looking at it from the perspective of an Indian law practitioner, somebody who’s represented Indian tribes. If they go back and argue that in the state court, and the state court says, ‘Yeah, that’s right,’ that the law approving the compact violates the state constitution, if I’m the Seminoles, I’m not going to like that, but that’s not going to be a bad decision for all of Indian country.”
Jordan: IGRA is Meant to Flex to Benefit Tribal Interests
Jordan agrees with the DOI assertion that tribes should be able to reap the benefits of modern technology’s influence on gaming, even though IGRA could not have presupposed it.
“You don’t have to be very smart or much of a prognosticator to say that Internet gaming is the wave of the future,” he said. “And if tribes can’t engage in Internet gaming under IGRA, then they’ll be cut out of this lucrative area that tribes should be able to participate in, just like anybody else.”
This affects competitiveness for retail tribal casinos, also, Jordan said, because the mobile component is key in promoting them once customers leave.
Consensus within the gambling industry has settled on 2025 as a timeline for sports betting to arrive in Florida, either through this legal process or a new compact in its aftermath. The current appeal is expected eventually to reach the Supreme Court by these same observers.
The Seminole Tribe has done well for itself playing a long game in Florida and with its interest reaching globally through its Hard Rock hotel and gambling brands.
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