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Sports betting in Florida is suspended indefinitely following a legal appeal this week, and if the case reaches the U.S. Supreme Court, the ruling could affect Indian gaming much like a May 2018 decision galvanized the commercial gambling industry.
On Monday (August 14), West Flagler Associates, a coalition of two South Florida pari-mutuel companies — Magic City Casino in Miami and Bonita Springs Poker Room near the state’s southwestern border — requested an en banc hearing in the U.S. Court of Appeals for the Washington, D.C. Circuit.
En banc is a French term for “on the bench” and means all the active judges of a court will hear oral arguments on an appeal.
West Flagler is seeking the en banc hearing after losing a 3-0 decision on June 30, which would restore a landmark 2021 tribal gaming compact and allow the Seminole Tribe to resume online sports-betting operations across Florida.
“The chances of ever getting a petition granted for an en banc hearing are extraordinarily low,” Robert Jarvis, a gaming law professor at Shepard Broad College of Law in Davie, Florida, told VIXIO GamblingCompliance.
“It is estimated that nationwide, only 1 percent of such requests are granted annually,” Jarvis said.
That is about the same percentage of appeals accepted each year by the Supreme Court.
“It is important to note the three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit issued a unanimous decision in favor of the U.S. Department of the Interior which approved the gaming compact between the Seminole Tribe and the state of Florida,” Seminole spokesman Gary Bitner said in a prepared statement.
Nevertheless, West Flagler’s en banc appeal foils any plans the Seminoles might have had to resume sports-betting operations in the near future.
The Seminoles accepted online sports wagers from November 1, 2021 to December 4, 2021 before being ordered to stop by the D.C. Circuit Court of Appeals.
At this point, it seems to be anybody’s guess when online betting in Florida will resume.
Prominent tribal gaming attorney Scott Crowell, who is based in Arizona and wrote a brief for the Indian Gaming Association in the Seminole-West Flagler case, said the en banc appeal was expected and is unlikely to gain traction.
“It is also clear that the petition is postured for seeking Supreme Court review after it is likely denied by the D.C. Circuit,” Crowell said.
A similar scenario unfolded in August 2016 when the 3rd U.S. Circuit Court of Appeals in Philadelphia conducted an en banc hearing on a sports-betting law in New Jersey.
Despite losing a 10-2 decision on its en banc appeal, New Jersey appealed to the Supreme Court and won a landmark judgment on May 14, 2018, which led to the rampant expansion of sports betting across the United States.
If the en banc appeal is denied in the Seminole case, the era of online sports betting and potentially online gaming for tribes is likely to commence not only in Florida but across the nation.
But there are key differences in the Florida and New Jersey sports-betting cases.
West Flagler lost a 3-0 decision, while New Jersey lost a 2-1 decision before seeking an en banc appeal.
“It’s always extremely difficult to be granted a hearing on an en banc appeal, and the fact that there was a 3-0 decision in the Florida case makes if even more difficult than it was in our case,” said Ron Riccio, a former dean of the Seton Hall University School of Law in Newark, New Jersey, who represented the New Jersey Thoroughbred Horsemen’s Association in the 2016 en banc hearing.
“But if an en banc hearing is granted in the Seminole case, that means there are judges in the D.C. Circuit Court of Appeals who think the 3-0 decision on June 30 is wrong or should be clarified,” Riccio said.
“I’m not sure the en banc hearing in our case really made that much difference because I think we already knew we were going to appeal to the Supreme Court.”
