Online sports betting in Florida could be underway again as early as next week as the DC Circuit Court of Appeals denied the request by West Flagler Associates for a rehearing en banc. In its ruling, the Circuit Court had anticipated the request and included the provision that the Seminole Tribe’s Hard Rock Sportsbook could not resume operations until seven days after the Court’s response.
Since the response came on Sep. 11, the Seminoles could potentially begin taking bets again next Monday or Tuesday. However, they had previously told players to expect sports betting to resume in early October. Perhaps they were unsure of how quickly the Court would respond. It remains to be seen whether Hard Rock is sufficiently prepared to take advantage of this faster-than-anticipated turnaround.
It works out well for the Seminoles that the DC Circuit panel took only 11 days to respond. The response itself is not unexpected, however. Requests for rehearings are rare precisely because courts almost never grant them. Rehearing “en banc” would have meant all 11 judges from the Circuit court would need to consider the case. The original three ruled unanimously against West Flagler and its co-plaintiff, Bonita-Fort Myers Corporation.
The two casino companies had sued the Department of the Interior. They argued that the Secretary of the Interior had a duty to reject the Florida gaming compact on the basis of illegality. The Department of Justice filed a response last week on the DOI’s behalf, encouraging the Court to deny the rehearing.
Had West Flager won its case, Florida online sports betting wouldn’t have been the only casualty of the decision. The new compact also allows the Seminoles to offer craps and roulette at their retail casinos in Tampa and Hollywood. These were previously off-limits in the state.
Is Florida Sports Betting Back to Stay?
The Seminoles are sufficiently confident in their victory that they’ve begun the process of hiring dealers to offer the new games at the two Hard Rock casinos. However, there is effectively no chance that West Flagler is done fighting.
The only question is which of two avenues it elects to pursue. It could take the matter to the Supreme Court or start a new battle at the state level.
West Flagler and Bonita-Fort Myers object to Florida’s sports betting plan because it cuts them out and grants exclusivity to the Seminoles. Florida chose to do things by way of a tribal gaming compact because it avoided the constitutional need for a referendum if it had gone the legislative route.
However, the compact hinges on the notion that a bet takes place “on tribal land” if that’s where the servers are, regardless of the bettor’s location.
The DC Circuit Court avoided ruling on that issue. Instead, it said that it’s a matter of state law and not for it or the Secretary of the Interior to decide.
Appealing to the Supreme Court of the United States would be the natural next step for West Flagler. However, it would carry the risk that SCOTUS might not only uphold but expand the ruling, commenting on the compacts in a way that would hurt any subsequent effort by the plaintiffs at the state level.
The alternative would be to take the Circuit Court’s advice and start afresh with a new suit in state court. Either way, we won’t see a final resolution to this case for some time. It has taken two years to reach this point, and several more chapters are still to be written.
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