Judges In Critical Sports-Betting Case May Lean Toward Seminoles

December 14, 2022
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The sports-betting industry is hoping for a major breakthrough when a landmark Florida case goes before a three-judge panel on Wednesday in the U.S. Circuit Court of Appeals in Washington, D.C.

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The sports-betting industry is hoping for a major breakthrough when a landmark Florida case goes before a three-judge panel on Wednesday (December 14) in the U.S. Circuit Court of Appeals in Washington, D.C.

The U.S. Department of Justice is appealing a November 2021 decision that blocked the Seminole Tribe of Florida from continuing to accept sports wagers online under a new gambling compact negotiated with Republican Governor Ron DeSantis of Florida.

“The decision in this case is of enormous significance to the future of the sports-betting industry in Florida and will have repercussions nationwide,” said Behnam Dayanim, a Washington, D.C. gaming attorney with Orrick, a law firm which represents DraftKings, FanDuel and professional sports leagues.

A reversal is expected to give the Seminoles and their company, Hard Rock International, a sports-betting monopoly in Florida, the third most populous state in the nation.

Moreover, Dayanim said, a decision supporting the Seminole compact almost certainly would encourage gaming tribes in other states to negotiate exclusive rights to offer mobile sports wagering.

“If the panel reverses [the opinion striking down the Seminole compact], I see sports betting being commonplace by 2030,” said Bob Jarvis, a professor who teaches gambling law at Shepard Broad College of Law in Davie, Florida.

On the other hand, if the Seminoles lose their appeal, Jarvis said he expects sports betting to “continue its current crawl, being legal in some states and illegal in other states”.

“I also think that if the panel [denies the appeal], there will be a push by tribes to convince Congress to amend the Indian Gaming Regulatory Act to specifically allow tribal mobile sports betting,” Jarvis said.

U.S. District Judge Dabney Friedrich of Washington, D.C., in a decision 13 months ago, ruled that the gambling compact between the Seminoles and Governor DeSantis violated the Indian Gaming Regulatory Act (IGRA) of 1988 by permitting betting outside tribal land.

Scott Crowell, a leading Indian gaming attorney in Sedona, Arizona, said Friedrich’s opinion “got it wrong, very wrong.”

“IGRA does not require every aspect of gaming activity to occur on Indian lands. Off-track betting, for example has become common in negotiated and approved tribal-state compacts,” Crowell said.

Crowell noted President Biden and Governor DeSantis, who may oppose each other in the 2024 presidential election, are aligned with the Seminoles in this case.

Two of the three judges who will hear arguments in the case on Wednesday have also written opinions favoring gaming tribes.

In February, U.S. Circuit Judge Karen Henderson wrote a dissenting opinion supporting a Michigan tribe’s effort to acquire off-reservation land for gaming.

In her dissent in the 2-1 decision rejecting the Sault Ste Marie Tribe’s proposal for an off-reservation casino, Henderson cited “the Indian Canon, which generally provides that in a case involving Indian law, ‘statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.’”

U.S. Circuit Judge Robert Wilkins, who also will be on the three-judge panel on Wednesday, joined a 3-0 opinion in July 2016 which upheld a decision by the U.S. Department of the Interior to take land into trust for the Gun Lake Casino operated by the Match-E-Nash-She-Wish-Band of Pottawatomi Indians in Michigan.

The third judge on the panel, J. Michelle Childs, heard arguments in October in a case involving two gaming tribes seeking more federal aid for COVID-19. A decision in that case is pending.

“I don’t think any of the judges immediately scream out as being in favor of one side or another, which will mean oral arguments could be our first indication of which way they are leaning,” said John Holden, an assistant professor of business at Oklahoma State University who writes frequently about sports betting.

The U.S. Department of the Interior allowed the Seminole gambling compact to become law in August 2021.

On November 5, 2021, in a hearing on a lawsuit against the compact, Judge Friedrich eviscerated a Justice Department attorney who urged her to dismiss the case.

But this time, Justice Department appeals attorney Rachel Heron will present the government’s arguments in support of the compact.

Meanwhile, the Seminoles attorneys were not allowed to present arguments in last year’s hearing but will be represented on Wednesday by Tallahassee, Florida lawyer Barry Richard.

Richard represented President George W. Bush in Florida during the disputed presidential election of 2000.

Florida Solicitor General Henry Whitaker also is scheduled to present arguments on Wednesday supporting the gambling compact.

On the other side, West Flagler Associates, a group of pari-mutuel companies in South Florida that prevailed in its lawsuit to scuttle the gambling compact, will be represented by attorney Hamish Hume.

Hume is the only attorney who also appeared in last year’s hearing. He works for a firm founded by attorney David Boies, who represented Vice President Al Gore in the historic case about the presidential election of 2000.

Monterra, an anti-gambling coalition in Florida that opposes the Florida gambling compact, will be represented by Miami attorney Jenea Reed.

The hearing is scheduled to last an hour, but could go well over that limit.

It usually takes three or four months for the U.S. Appeals Court for the Washington, D.C. Circuit to render a decision.

No matter who wins, the losing side is expected to appeal to the U.S. Supreme Court.

This lengthy judicial process means sports betting is unlikely to resume in Florida for months or perhaps years even if the Seminoles win.

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