West Flagler Associates filed its request for the Supreme Court of the United States (SCOTUS) to hear its Florida sports betting case on Feb. 8, 2024, the last day allowable under the extension it obtained in December. Many of those following the case believe that it’s unlikely that SCOTUS will grant the appeal in light of its refusal to stay the relaunch of the Seminole Hard Rock Bet sportsbook West Flagler is fighting against. If it does hear the case, however, that will have significant ramifications for online gambling throughout the country.
Like many of the trickiest and most important legal cases, the West Flagler case is, at its heart, a fight over definitions.
Florida would have required a constitutional amendment—and consequently a referendum—to legalize sports betting the conventional way. However, the Indian Gaming Regulatory Act (IGRA) allows states to authorize federal tribes to conduct gaming on their land, requiring only the approval of the Secretary of the Interior. Florida’s solution to its constitutional issue was to authorize tribal online sports betting, interpreting IGRA to mean that only the betting servers would need to be on Seminole land.
In 1988, when IGRA passed, the phrase “on Indian lands” seemed straightforward enough. Gambling, at that time, was exclusively a face-to-face activity. The question of how it applies to remote betting impacts not just Florida sports betting but any sort of hypothetical online gambling states might want to authorize by way of a compact.
West Flagler’s Argument
Some aspects of the case are extremely technical. Matt Kredell at PlayUSA—another Catena Media publication—provides an excellent rundown of what’s in the petition.
In a nutshell, though, West Flagler wants SCOTUS to decide three questions:
- Does a compact like Florida’s fit within the intent of IGRA?
- Does Florida’s interpretation of bet location violate the federal Unlawful Internet Gaming Enforcement Act (UIGEA)?
- Is Florida violating equal protection principles by allowing the Seminoles to take bets from players off tribal lands, which would be illegal for anyone else to take?
On the first two questions, West Flagler points to precedents to justify its petition.
On the IGRA issue, it raises a previous SCOTUS case involving Michigan and the Bay Mills Tribe. In that case, SCOTUS disagreed with Michigan’s claim that IGRA applied to an off-reservation casino because the administrative offices were on Bay Mills land. West Flagler argues that this implies a narrow interpretation of “on Indian lands” that would likewise exclude a bet placed outside such lands but received within them.
As for UIGEA, West Flagler argues that there is a conflict between the DC Circuit court’s interpretation and the Ninth Circuit’s, which SCOTUS should resolve. The DC Circuit ruled against West Flagler, finding that the compact “does not as a facial matter violate the UIGEA.”
Conversely, the Ninth Circuit previously ruled that for online bets to be permissible under the UIGEA, they must be legal both where the bet is placed and where it is received.
Signs Point to Impending State-by-State Chaos
Unfortunately for West Flagler—but fortunately for those of us who enjoy reporting on legal drama—SCOTUS seems inclined to agree with the DC Circuit that it’s OK for the Department of the Interior to allow compacts that aren’t blatantly illegal and that disputes like West Flagler’s should be a matter for state courts.
The Bureau of Indian Affairs (BIA) at the Department of the Interior, meanwhile, has drafted—but still not finalized—rules that would expressly endorse Florida’s notion of bet location, stating that it will approve such compacts in the future. The formal end of West Flagler’s federal case may be precisely what the BIA is waiting for.
In the next few weeks or months, SCOTUS will decide whether to hear the case. If, as many suspect, it declines the petition, then West Flagler can continue the fight it has already begun in Florida state court.
However, if the BIA then puts its proposed rules into effect, the floodgates could open for similar attempts across the country. This could include proposals for tribal online casino gaming as well as sports betting.
The upside is that it could accelerate the expansion of regulated iGaming in the US. Many states have found their online casino legislation efforts caught up in political quagmires. Governors who favor online gambling but whose legislatures can’t get the job done might be tempted by compacts if they provide an easier path.
However, the decision by federal authorities to punt the question to the states will mean each such compact is likely to face its own challenge. The same interests that lobby against legislation will take their fight to the state courts instead.
In other words, buckle up. Things are about to get interesting.
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