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The U.S. Supreme Court has rejected an effort to overturn online sports betting in Florida, denying a request by West Flagler Associates and Bonita-Fort Myers Corp. to hear their petition questioning the legality of a 2021 gaming compact between the state and the Seminole Tribe.
The decision by the Supreme Court not to take up the case practically closes the door on federal legal challenges to the landmark gaming compact that exclusively enables the tribe to operate online sports betting in Florida through July 2051.
“The Seminole Tribe of Florida applauds today’s decision by the U.S. Supreme Court to decline consideration of the case involving the tribe’s gaming compact with the state of Florida,” Gary Bitner, a spokesman for the tribe, said in an email.
“It means members of the Seminole Tribe and all Floridians can count on a bright future made possible by the compact.”
Monday’s (June 17) Supreme Court decision was not unanimous as Justice Brett Kavanaugh voted to grant the petition for writ of certiorari. Justice Ketanji Brown did not participate in the consideration or decision on this petition, according to the high court.
The Supreme Court justices conferenced on June 13 regarding West Flagler’s lawsuit against the U.S. Department of the Interior (DOI) before issuing its decision on Monday. It was widely expected that West Flagler’s petition for writ of certiorari would be denied.
The petition was West Flager’s final chance before the federal courts to overturn a decision by the U.S. Court of Appeals for the District of Columbia in June 2023 that reversed a federal judge’s earlier decision that the compact violated the Indian Gaming Regulatory Act (IGRA) by authorizing the Seminoles to conduct off-reservation sports betting.
Under the compact, the tribe are allowed to take sports bets through a so-called “hub and spoke” model in which all wagers are accepted via servers on tribal land.
Bitner declined to comment on whether the Supreme Court’s decision will now open the door to the Seminole Tribe seeking negotiations to amend the compact again to also offer online slot machines and table games across the state.
Messages left Monday with West Flagger’s attorney Hamish Hume, with Boies Schiller Flexner in Washington, D.C., were not returned.
“Today’s decision was expected, but still very welcome news as it validates that tribes are able to offer state-wide mobile gaming under IGRA,” said Scott Crowell, a prominent tribal gaming attorney and founder of Crowell Law Office Tribal Advocacy Group in Arizona.
“The position advocated by Florida’s cardrooms that IGRA could actually be used to prevent tribes from participating in the largest expanding sector of the gaming industry, would have turned Congressional intent in the passage of IGRA on its head," Crowell told Vixio GamblingCompliance.
At the state level, West Flagler, a licensed pari-mutuel operator, can still file a lawsuit in the Leon County Circuit Court in Tallahassee and argue that the compact violates Florida’s constitution.
“It doesn’t, of course,” said Bob Jarvis, professor of law at Shepard Broad College of Law at Nova Southeastern University in Fort Lauderdale. “That is what the Florida Supreme Court said was the proper procedure when it dismissed West Flagler’s quo warranto action, which [they] filed directly in the Florida Supreme Court.”
“While it would not surprise me to see West Flagler file such a lawsuit,” Jarvis said, “it’s a further waste of time and money.”
In addition, Jarvis noted that West Flagler could still seek to file a federal equal protection lawsuit citing Kavanaugh.
“Lastly, anything is possible, so I suppose West Flagler could try to block the new DOI rule, but I don’t see how that would affect the Seminoles,” he said, referring to the U.S. Department of the Interior regulations enacted earlier this year that expressly recognize the “hub and spoke” model for online gambling conducted by tribes.
Jarvis said an equal protection lawsuit would be a “non-starter” as states have long had total discretion over gambling and can favor some groups over others when awarding gambling rights.
“Why? Because gambling is a vice, and therefore does not get treated the same as, for example, a license to open a dry-cleaning business. So, I cannot imagine how a colorable equal protection argument could even be framed,” Jarvis said.
Crowell added that Justice Kavanaugh “has furthered his troubling quest of a decision looking for a lawsuit to challenge the bedrock precedent of Morton v Mancari, and its progeny, which reaffirmed that tribal preferences in federal statutes are based in the Constitution’s recognition of tribes as sovereign political bodies, rather than race-based distinctions in violation of the Equal Protection Clause.”
Justice Kavanaugh's vote to take up the challenge to the Seminole compact is consistent with several recent actions, Crowell added. “Notably, no other justice has joined him on this concerning agenda.”
The Supreme Court’s decision to deny cert to West Flagler is expected to lead to major changes in tribal gaming with the possibility of other states with exclusive tribal gaming compacts, such as Minnesota, North Dakota, and Wisconsin, potentially also looking to negotiate amendments to allow the hub-and-spoke model of sports betting.
In some states, lawmakers would have to agree to amend gaming compacts to ensure tribal control of online sports betting and potentially internet gaming, while any compact amendments also would require federal approval in line with the new DOI rules.
“I think this is going to work a big change in tribal gaming, as I expect many tribes to now press for the same spoke-and-hub system that the Seminoles got from Florida,” Jarvis said.
“In some ways, however, this is an inevitable change — after all, once a state allows in-person betting, how much of a leap is it to allow mobile betting? Obviously, not much.”
Jarvis said the same legal principles also apply to iGaming, which is “the next big thing and will be here before anyone realizes it.”
Mobile sports betting was just the camel’s nose in the tent, he added.
