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The U.S. Supreme Court on Wednesday (October 25) denied a request by sports-betting opponents in Florida to extend the delay on internet wagers in the Sunshine State.
The request by West Flagler Associates of Miami for a sports betting “stay” required votes from at least five of the nine Supreme Court justices and it is not clear if any of the justices supported the request.
Although he said he did not think a stay should be granted, Justice Brett Kavanaugh did issue a statement expressing concern that the 2021 Florida state law to ratify a tribal gaming compact including off-reservation sports wagers may have violated the equal protection clause in the 14th Amendment of the U.S. Constitution.
The Florida legislature, in a special session in May 2021, overwhelmingly approved a 50-page gambling reform law which included the ratification of a 30-year gambling compact negotiated between Governor Ron DeSantis and the Seminole Tribe.
“To the extent that a separate Florida statute (as distinct from the compact) authorizes the Seminole Tribe — and only the Seminole Tribe — to conduct certain off-reservation gambling operations in Florida, the state law raises serious equal protection issues,” Kavanaugh said.
“But the state law’s constitutionality is not squarely presented in this application.”
Kavanaugh also said: “The Florida Supreme Court is in any event currently considering state-law issues related to the tribe’s potential off-reservation gaming operations.”
In response to Kavanaugh’s statement, U.S. Solicitor General Elizabeth Prelogar wrote that the Florida gambling compact “does not implicate race-based equal protection concerns.”
Prelogar said the compact was negotiated between two sovereign governments — Florida and the Seminole Tribe — and a “sovereign government has no race.”
It is up to the Florida Supreme Court to determine the legality of the 2021 gambling compact, Prelogar said.
“If the Florida Supreme Court concludes that the Florida legislature’s authorization of the placement of the wagers outside Indian lands is not permissible under the Florida Constitution, that would afford applicants (West Flagler Associates) the relief they seek,” she said.
Scott Crowell, an Arizona tribal gaming attorney who wrote a brief for the Indian Gaming Association supporting the Florida gambling compact, also downplayed Kavanaugh’s comments.
“No other [U.S. Supreme Court] justice seems interested in joining his agenda of revisionist history,” Crowell told Vixio GamblingCompliance in an email.
Chief Justice John Roberts raised eyebrows two weeks ago when he ordered the U.S. Department of the Interior to respond to request by West Flagler Associates for a sports-betting delay in Florida.
After Prelogar responded to Roberts’ order on October 18, the chief justice referred the issue to other justices on the Supreme Court, leading to the response from Kavanaugh.
The denial of a stay means West Flagler’s only option in federal court is to appeal for a hearing in the U.S. Supreme Court to review the 3-0 decision on June 30 by the U.S. Circuit Court of Appeals in Washington, D.C. upholding Interior Secretary Deb Haaland’s approval of the Florida gambling compact.
The other option for West Flagler Associates appears to be its lawsuit against the compact in Florida’s Supreme Court.
“I continue to think the [Seminole] Tribe, while heartened by this development, does nothing [to resume sports betting],” said Robert Jarvis, a gaming law professor at Shephard Broad College of Law in Davie, Florida.
“Although the tribe is, of course, losing money every day that it does not offer sports betting, I think the downside of starting up again prior to all the litigation being concluded is just too great,” Jarvis said.
John Holden, an associate professor in the department of management at Oklahoma State University, said the Supreme Court’s denial of a sports-betting stay in Florida is a big victory for the Interior Department and the Seminoles.
“It obviously doesn’t mean that [West Flagler Associates’] petition [for certiorari in its pending appeal to the U.S. Supreme Court] won’t be granted, but it seems like a good omen,” Holden said.
“My guess is that West Flagler is feeling a bit demoralized at the moment.”
Barry Richard, an attorney for the Seminole Tribe, said there was an overblown reaction to Chief Justice Roberts’ order on October 12 to halt sports betting in Florida until the Supreme Court ruled on West Flagler’s request for a stay.
“I think those people who speculated that the administrative stay [by the chief justice] indicated something significant don’t understand the nature of an administrative stay. I am not surprised,” Richard said.
