Tribal Law Veteran: West Flagler Push to End Florida Sports Betting Defeats Itself

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West Flagler Associates’ petition asking the United States Supreme Court to take up its case for ending mobile sports betting in Florida undercuts its primary arguments. It fails to prove federal intervention is needed.

So says Derril B. Jordan, a former Associate Solicitor for the US Division of Indian Affairs, now serving as a senior Indian law attorney and partner with mctlaw. Jordan told Gaming Today that not only does the text of West Flagler’s writ of certiorari suggest that the case should be settled in Florida – where there is a challenge underway in that state’s high court – but it fails to prove that the 2021 compact the Seminole Tribe of Florida signed with the state will change the national model for how native gambling companies are regulated.

Those critical of or opposed to the compact contend that it will mark a paradigm change. For the first time, a tribe can accept state-wide mobile bets via a compact without legalizing the activity beyond tribal lands.

Still, Jordan doesn’t think the case rises to the level of something the US Supreme Court will hear. It has until June to decide. That the Seminole Tribe resumed its sports betting operation in Florida in November after a series of federal appeals court victories will probably impact whether four justices can be convinced to take up the case, he said. But he doubts any will admit it.

“Let’s put it this way: I don’t think it’s an issue that the Supreme Court is going to take up,” he said. “Every justice has their own things. One could see Justice [Brett] Kavanaugh voting to accept cert. It’s possible that four of them might agree to do so.

“Do I think they should? No, I don’t think so. It’s possible.

“But I don’t think that this measures up.”

The topic continues to divide gambling observers. Florida-based gaming attorney Daniel Wallach filed a brief with the Supreme Court last week encouraging it to take up the case because of the contentious “hub-and-spoke” model allowing the Seminoles to take bets statewide. Industry observer Baird Fogel also questions how Hard Rock is allowed a monopoly.

West Flagler’s Argument Centers on Disputed Premise:

West Flagler’s legal team, led by Hamish Hume, asserted this in its writ filed on Feb. 8:

“As different jurisdictions make different decisions regarding the legality of sports betting, it is critical that this Court not allow the unlawful approach taken by Florida to become a model, or for the D.C. Circuit decision to create confusing and misleading precedent.”

Jordan remains unmoved as an advocate of a broad interpretation of the Indian Gaming Regulatory Act.

“To me, that’s not really a game-changer. That’s making things the way they should be, the way the law should be applied,” he said. “There is a compact. It’s a game-changer if a law says they can offer betting without a compact.”

West Flagler, in the cert, also asks the Court to consider whether IGRA allows compact that:

  • Create a monopoly.
  • Accept bets from bettors not physically on tribal lands.
  • Potentially violates equal protection principles.

“They’re trying to dress up a state law issue as a federal law question in hopes that the Court will grant cert,” Jordan said. “The first thing that somebody says is usually what they’re thinking, right?

“And the first thing they say in the introduction is, ‘May the governor of a State and Indian tribe use a federal approval of an IGRA compact as a backdoor around state constitutional prohibitions against online support gambling…’

“That’s what this is about. It’s about what the governor and the state are doing, violating state law and the state constitution from their perspective. It’s not about the federal issues. It’s about the state issues.

“In my opinion, they’re trying to dress this state law issue up as though it were a federal law issue.”

Jordan: West Flagler Trying to Nationalize State Issue

Under the 30-year deal, the Seminole’s Hard Rock Bet app can offer mobile betting state-wide as long as the servers handling them are housed on tribal lands. This critical part of the compact initially led to it being voided by a federal judge before the ruling was overturned by an appeals court last summer. Jordan agrees with the Department of the Interior and Seminole lawyers that IGRA – circa 1988 – should be considered expandable as new technologies and opportunities emerge.

Jordan said West Flagler’s petition failed to adequately make the case that allowing the compact to continue in Florida would have national repercussions. The crux of West Flagler’s Florida Supreme Court argument is that Gov. Ron DeSantis and the state legislature overreached in agreeing to the deal.

“Whether or not that’s true, they talk about it being an important nationwide precedent, and their kind of parade of horribles there is whether or not the governor and the legislature in Florida violated state law,” Jordan said. “Their parade of horribles is based on the assumption that numerous state governors and legislatures will violate their own laws.

“Whether that’s a plausible scenario or not, I don’t know. And the thing about that is, even if that’s true, that’s why you have state courts, and that’s also why you have a ballot box. And if people feel that the governor and the legislators have violated the law, they can vote them out of office. The first line of defense isn’t the United States Supreme Court.”

Justice Brett Kavanaugh intimated that the case perhaps belonged in the Florida legal system when the Supreme Court denied a West Flagler request to make a temporary stay permanent.

“Generally, the Supreme Court doesn’t inject itself. It may need to eventually weigh in,” Jordan said. “But federal courts generally would prefer to have state courts rule on state law issues before they do, and then take their guidance from the state courts.”

Assessing West Flagler’s Writ Assertions

The DOI allowed the compact to become law by not directly approving it, but allowing a mandatory 45-day review period to expire without rejecting it. Ultimately, the department expressed approval for most of the compact – like the broader interpretation of IGRA – and disdain for others – such as entering into marketing agreements with non-tribal pari-mutuels.

 

West Flagler cert

 

“They say the secretary allowed it to enter into force. Congress gave the secretary 45 days to approve a compact, understanding that’s not the only thing that the secretary does is approve compacts,” Jordan observed. “That time period that Congress gave Interior tells you that Congress did not intend for the Secretary of the Interior to review every state compact that came before it to determine whether or not the governor and the state’s legislature followed state law in approving a compact.

“That’s not what the 45-day period is intended for. That’s what Congress wanted. You assume that when a governor and a legislature approve a compact, that they know what the laws of their state are.”

West Flagler cert

 

The passage continues:

“Nevertheless, because there is a scenario in which a Florida Supreme Court decision could moot this Petition, if this Court believed appropriate, Petitioners would acquiesce to an extension of time for any opposition to this Petition until 30 days after a decision by the Florida Supreme Court.”

“The point is here, they’re acknowledging that the Florida Supreme Court can moot their petition, which I think undermines the argument that they make on the previous page,” Jordan said, “that only the Supreme Court can rectify the secretary’s approval.”

Just 2% of petitions to the Supreme Court are taken up for consideration, although just four Justices need to consent. Jordan said in the past, the court had preferred to “resolve a case on a statutory basis as opposed to a constitutional basis.”

“If you can resolve a case on the basis of contract as opposed to interpretation of law, you do it,” he said. “You always kind of go for the least intrusive way to resolve the case. This is true not only of the Supreme Court, but lower federal courts say the same thing.

“But what [West Flagler]’s asking here is essentially to go straight to the constitutional issue, rather than allowing the state court to at least have an opportunity to resolve the issue on state law issues.”

The Florida Supreme Court denied West Flagler’s request for an expedited review to halt Hard Rock from taking bets on Nov. 17.

“So I’m wondering,” Jordan ponders, “if the Florida Supreme Court doesn’t think it’s worthy of expedited review, why is it worthy of review by the United States Supreme Court?”

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About the Author
Brant James

Brant James

Senior Writer
Brant James is a senior writer 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, 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 yelled at him numerous times. In covering the sports betting industry, he's looking for what and who are next and why.

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