The State of Florida Sports Betting Heading Into the 2024 NFL Playoffs

The Tampa Bay Buccaneers enter the Divisional Round of the 2024 playoffs as the No. 4 seed in the National Football Conference (NFC), slated for a showdown against the Detroit Lions on Jan. 21 at 3:00 PM EST. Local fans can legally place wagers on the Tampa Bay Buccaneers’ Divisional Round game from the comfort of their homes for the first time in the franchise’s history as online sports betting officially re-launched in Florida on November 7, 2023, via the Seminole Tribe’s Hard Rock Sportsbook app.

As the subject of a drawn-out legal battle, however, the status of Florida sports betting remains in the balance. Having exhausted many other options, West Flagler & Associates — a group of nontribal gambling companies that initially filed the suit — now relies on either the Supreme Court of Florida or the U.S. Supreme Court to repeal the legal status of sports betting in Florida.

The Path to Legalized Betting in Florida

The Supreme Court’s repeal of the Professional and Amateur Sports Protection Act (PASPA) in 2018 gave individual states the power to legalize sports betting. Since then, over 60 percent of states have legalized some form of sports wagering, with several other states in the legalization process. While Florida sports betting is legal, the path to getting there has been both circuitous and unique.

The Beginning of The Federal Case

In April of 2021, Gov. Ron DeSantis signed a compact with the Seminole Tribe of Florida to bring sports betting to the state. In May 2021, the state automatically moved the compact forward when the Department of Interior (DOI) failed to approve or deny the compact within 45 days. The Seminole Tribe was able to move forward with sports betting offerings in the state by November 2021. It did so through the launch of the Hard Rock sports betting app.

West Flagler Associates, who represents various casinos and racinos around the state, sued the DOI for violation of the Indian Gaming Regulatory Act (IGRA), claiming that the launch of a mobile sports betting app in the state authorizes gaming outside of Indian lands, which contradicts the rules of the IGRA. They also claimed several other violations, forcing U.S. Secretary Debra Haaland to disapprove of the compact formally. The Hard Rock Sportsbook app was forced to shut down by December 2021, starting a multi-year legal battle.

According to court documents, “The District Court then granted summary judgment for the West Flagler plaintiffs, finding that the Compact violated IGRA because its online sports betting provisions impermissibly attempted to authorize gaming off of Indian lands; accordingly, the Secretary had an affirmative duty to reject it.”

Appellate Court Decisions

The Seminole Tribe and the DOI filed appeals after the court’s decision, arguing that the Hard Rock Sportsbook app did not violate the IGRA because IGRA’s jurisdictional power does not reach non-tribal lands.

Fast forward to June 30 of last year, the D.C. Circuit Court of Appeals, who was charged with reviewing the case, ruled in favor of the Seminole Tribe. Here’s why, according to the case opinion:

“The District Court erred by reading into the Compact a legal effect it does not (and cannot) have, namely, independently authorizing betting by patrons located outside of the Tribe’s lands,” it read. “Rather, the Compact itself authorizes only the betting on the Tribe’s lands; in this respect, it satisfied IGRA.”

In essence, IGRA permits a gaming compact to allow gaming on tribal lands; however, nothing in IGRA distinctively prohibits a state and a tribe from including other subjects in the compact.

“Whether it is otherwise lawful for a patron to place bets from non-tribal land within Florida may be a question for that State’s courts, but it is not the subject of this litigation and not for us to decide.” This transfer of jurisdictional power to the state court will eventually be very relevant (more on this later).

On August 14, 2023, West Flagler filed a petition for rehearing en banc in its case against the Seminole Tribe. Days later, the D.C. Circuit Court of Appeals denied the petition.

The U.S. Supreme Court Gets Involved

West Flagler then filed a request for a stay of the mandate with the U.S. Supreme Court. This is a request for the Supreme Court to stop a lower court’s decision from being carried out.

On October 12, 2023, Chief Justice John Roberts issued a temporary stay of the mandate to review West Flagler’s application. One week later, the DOI filed a response arguing West Flagler “failed to satisfy” the requirements for a stay of the mandate in this case; therefore, further stay of the mandate was unwarranted.

On Oct. 25, U.S. Supreme Court Justice Brett Kavanaugh agreed by ruling that West Flagler did not meet one or all of these requirements and, therefore, denied the stay:

“I agree that the stay application should be denied in light of the D. C. Circuit’s pronouncement that the compact between Florida and the Seminole Tribe authorizes the Tribe to conduct only on-reservation gaming operations and not off-reservation gaming operations,” Kavanaugh wrote in his opinion.

As a result of this response, the temporary stay issued by Justice Roberts was lifted, effectively re-validating the 2021 sports betting compact that started this case.

So, in early November, the Hard Rock app relaunched. West Flagler immediately filed a motion with the Florida Supreme Court to suspend operations and was denied. The app is still running today.

West Flagler has until Feb. 9 to file a petition for a writ of certiorari with the U.S. Supreme Court. It is expected to do so, at which point the U.S. Supreme Court can either choose to accept it or not. If it does choose to accept it, it will make the last and final decision on whether Florida sports betting stays or goes. For now, though, Florida sports betting is safe.

What A Legal Expert Has to Say About The Federal Case

Not only could the U.S. Supreme Court get involved, but it may also serve as the only option to change the jumbled legal status of Florida sports betting.

“If there is any chance for a changed outcome (in the Florida sports betting case), the U.S. Supreme Court represents the better or, more likely, more palatable option,” sports gaming legal expert Daniel Wallach told Lineups in an interview. “That’s, I think, the most likely vehicle.”

“This issue will continue to surface – even after this case concludes,” Wallach wrote in an August article. “Therefore, it would make sense for the Supreme Court to address this issue now and bring much-needed clarity to the divisive question of whether IGRA’s reach extends to tribal-regulated gaming activities outside of Indian lands rather than let the issue further devolve into a maze of conflicting and contradictory federal court rulings.”

Rundown of Florida Sports Betting State Supreme Court Case

In a separate case, West Flagler has also taken up a case in the Florida State Supreme Court. They argue that the Seminole’s compact with Gov. Ron DeSantis violates the Florida Constitution. West Flagler argues that expanded gambling must be approved through a referendum with 60% voter support, according to Florida Amendment 3.

DeSantis responded on Dec. 1, disputing the claims. West Flagler Associates filed its final response in the Florida Supreme Court case on December 23, 2023. That was the last briefing necessary for the Florida Supreme Court to decide.

The briefing has concluded. The Florida Supreme Court can rule at any time (note: it took only 10 days to deny West Flagler’s motion to temporarily suspend online sports betting). It has 4 options:

– Grant
– Deny
– Transfer to circuit court
– Hold oral argument first https://t.co/mwMM7DzoEu

— Daniel Wallach (@WALLACHLEGAL) December 26, 2023

According to a post on X, Wallach believes a denial or a transfer to circuit court is the most likely outcome.