In the latest Florida sports betting development, Plaintiff West Flagler unsurprisingly filed a petition for a rehearing en banc with the D.C. Circuit Court of Appeals. The court’s decision as to whether or not to grant the rehearing will influence whether or not the Hard Rock sportsbook app will be able to launch ahead of the 2023 NFL season.
West Flagler Argues Seminole Tribe Has Monopoly
West Flagler is currently filing a petition for rehearing on the grounds that “the net effect of the Opinion is that a tribe and state may now contract to give the tribe a statewide monopoly on gaming off of Indian lands so long as some of the gaming also occurs on at least one square foot of Indian land.”
In other words West Flagler, a pari-mutuel currently operating in the state, is asserting that the Seminole Tribe now has full jurisdiction over Florida’s sports betting industry, making it impossible for existing operators to compete in the state.
“It is unclear whether even a statewide monopoly is the limit; under the Opinion’s logic, the Secretary may approve a compact between a tribe and multiple states for a multi-state gaming operation, regardless of the tribe’s presence and the legality of gaming in those states—so long as any portion of the gaming at issue occurs ‘on Indian lands,’” the petition continues.
West Flagler’s Course of Action
Petitions for rehearing en banc are “so sparingly granted,” said sports betting legal expert Daniel Wallach in an interview with Lineups.
Behind only The Supreme Court, the D.C. Circuit Court of Appeals is considered the second-most important court in the country. Given that they are only allowed to hear a limited number of cases each year, the Circuit Court of Appeals tends to be very selective with the cases they do hear.
“I’m not so sure that a gaming statute would be the one or two cases that they take,” Wallach said.
The court now has 90 days to issue a formal decision on the matter. If their petition for rehearing en banc is denied, West Flagler would have an additional 90 days from the date of denial to petition for a writ of certiorari with the U.S. Supreme Court.
“If the rehearing en banc and Supreme Court writ of certiorari are both denied, the likely end to the federal case would be in the second quarter of 2024. But then, they would bring a state court challenge over Amendment 3,” Wallach said previously.
Florida Amendment 3 gives Florida voters the exclusive right to decide whether to authorize casino gambling in the State of Florida.
The legalization of sports betting challenges Amendment 3 as Florida voters never technically voted to approve sports betting, it came to fruition through a compact with the Seminole Tribe.
“I don’t believe any state court litigation is going to be filed until after the federal proceedings have concluded with finality,” Wallach said.
Seminole Tribe’s Course of Action
Meanwhile, the Seminole Tribe issued a statement on Monday following the appeal: “It’s important to note the three Judge panel of the US Court of Appeals for the District of Columbia Circuit issued a unanimous decision in favor of the US Department of the Interior, which approved the Gaming Compact between the Seminole Tribe and the State of Florida.”
Given the nature and history of rehearings in the D.C. Circuit Court of Appeals, it is unlikely that they will take very long to issue a decision in this case. If the appeal is denied in the next month, the Seminole Tribe could potentially re-launch their Hard Rock Sportsbook platform early on in the NFL season.
Technically, the tribe does not have to wait until then to launch – there is currently nothing barring them from launching right now given the initial decision of the appellate court. However, it would likely negatively affect how the appellate judges view the tribe.
So, the tribe will likely wait until an official decision is made regarding the rehearing en banc to make their next move. Even then, there are still plenty of legal options available to West Flagler to prolong this process, so they wouldn’t be fully in the clear even if the petition for rehearing is denied.