West Flagler et al Petition for Rehearing En Banc in Florida Sports Betting Case

West Flagler Associates’ attempt to block Florida sports betting may yet end up before the Supreme Court, but first, it has petitioned for the DC Circuit Court of Appeals to rehear the case en banc. This is a move the circuit court panel anticipated, perhaps even encouraged, in attaching a supplementary order to its ruling on June 30. The order specified that the mandate allowing the Seminole Tribe to resume its sports betting activities would not come into effect until seven days after the court responded to a petition for rehearing.

It’s rare that a court grants such requests. However, the delay imposed by the court order may be what West Flagler and its co-plaintiff Bonita-Fort Myers Corporation are truly after. They waited until the petition deadline to file. Even if the court responds immediately, the Seminole Hard Rock Sportsbook will miss out on most preseason NFL betting. It will be on a tight timeline to get up and running by the beginning of the regular season on Sep. 7.

Florida’s constitution requires any new gambling law to receive voter approval in a referendum. The state tried to circumvent that by authorizing online sports betting through a tribal gaming compact rather than legislation. The compact argues that online betting takes place “on tribal land” for legal purposes so long as the servers processing the bets are hosted there.

West Flagler and Bonita-Fort Myers operate Magic City Casino and Bonita Springs Poker Room, respectively. They objected to the compact because it cut them out of the sports betting market and granted the Seminoles a monopoly.

A Rehearing Would be Highly Unusual

During a regular case, arguments take place before a panel of three judges from the court. A rehearing en banc would mean repeating the case before the entire bench. For the DC Circuit Court of Appeals, that would be 11 judges.

In principle, either party in a case can request a rehearing if they feel justice hasn’t been served. Yet such requests are uncommon in practice because courts grant them so rarely as to make it a pointless gesture.

Here, however, the request does serve a purpose even if the court rejects it. Because of the court order, it will push Hard Rock’s relaunch back by at least seven days.

If the court were to grant a rehearing, it would be a dramatic and exceptional moment for gambling law. The Federal Rules of Appellate Procedure state that a rehearing en banc is “disfavored.”

However, a court can allow it if a majority of judges agree in one of two circumstances:

  • To ensure consistency of decisions if the panel’s ruling likely conflicts with precedent from the same court or,
  • If the legal issue is one of exceptional importance.

In their petition, the plaintiffs are presenting the case as the latter. They argue that the ruling effectively grants the Secretary of the Interior free rein to approve any form of tribal gaming anywhere, so long as it’s also happening on the tribe’s land. The petition paints this as undermining the rule of law at the state level:

The net effect of the Opinion is that a tribe and state may now contract to give the tribe a statewide monopoly on gaming off of Indian lands so long as some of the gaming also occurs on at least one square foot of Indian land. It is unclear whether even a statewide monopoly is the limit; under the Opinion’s logic, the Secretary may approve a compact between a tribe and multiple states for a multi-state gaming operation, regardless of the tribe’s presence and the legality of gaming in those states—so long as any portion of the gaming at issue occurs ‘on Indian lands.’

DC Circuit Declined to Answer Fundamental Questions

The most important question in the case is whether the state’s logic about the location of a bet holds up to legal scrutiny. However, the DC Circuit Court declined to rule on that aspect, saying that a state court should decide that issue. It overturned a lower federal court, ruling narrowly that the Secretary of the Interior isn’t obligated to reject such a compact.

Meanwhile, the Bureau of Indian Affairs (BIA) is contemplating new rules that touch on the issue. Though not yet finalized, they include this approach to online gambling as legal in the eyes of the BIA, though its opinions lack the force of law.

On both fronts, there appears to be a reluctance at the federal level to decide the issue one way or the other.

What Happens if the Court Declines the Rehearing?

Most observers expect the court to reject the request. In that case, the circuit court’s ruling will stand, and Florida online sports betting can resume, albeit with a delay.

West Flagler and Bonita-Fort Myers will surely continue to fight, however. Aside from a rehearing in circuit court, two avenues are available, and they will probably exhaust them both in order.

First, they can appeal the DC Circuit Court’s ruling to the Supreme Court of the United States. After that, they can follow the circuit court’s suggestion and pursue the matter at the state level.

It may be an uphill battle on both fronts. Legal analysts have pointed to recent Supreme Court decisions as evidence that current justices are inclined to support greater rights for tribes. Meanwhile, there’s no knowing how a case in state court would go. The government would naturally enjoy the “home field” advantage. However, Florida courts have recently and repeatedly demonstrated a willingness to contradict the governor, albeit usually on civil rights issues.

About the Author

Alex Weldon

Alex Weldon

Alex Weldon is an online gambling industry analyst with nearly ten years of experience. He currently serves as Casino News Managing Editor for Bonus.com, part of the Catena Media Network. Other gambling news sites he has contributed to include PlayUSA and Online Poker Report, and his writing has been cited in The Atlantic.
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