On the final day of June, the U.S. Court of Appeals for the D.C. Circuit released its opinion on the future of Florida sports betting. The opinion is a reversal of the Circuit Court which invalidated the compact between Florida and the Seminole Tribe (“Tribe”).
To fully understand this case, it helps to understand some of the history surrounding the main crux of the case: the Indian Gaming Regulatory Act (“IGRA”). IGRA was enacted in 1988 and provided a statutory base for the regulation of tribal gaming. One of the main goals of IGRA was to “promote tribal economic development, tribal self-sufficiency, and strong tribal government”. IGRA also permits states and tribes to enter into contracts for Class III gaming. Class III gaming includes slot machines, house-banked table games like blackjack, and most importantly sports betting.
This is where the issues surrounding Florida sports betting grew. Back in 2021, the state of Florida entered into a gaming compact with the Seminole Tribe giving them complete control over the sports betting regime within the state. The compact came into effect after the Secretary of the Interior failed to disapprove the compact within the 45-day deadline. This led casinos and other tribes within the state to bring a lawsuit against the Secretary claiming the allowance of the compact violated IGRA by permitting gaming outside of Indian lands.
The appeals court saw this differently. The court stated that IGRA does not prohibit compacts covering areas outside Indian land.
Thus, to be sure, an IGRA gaming compact can legally authorize a tribe to conduct gaming only on its own lands. But at the same time, IGRA does not prohibit a gaming compact—which is, at bottom, an agreement between a tribe and a state—from discussing other topics, including those governing activities “outside Indian lands[.]”
This stance is different than others that have previously been set by other federal circuits. The opinion goes on to state that the District Court erred in its interpretation of the compact.
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. Rather, the Compact itself authorizes only the betting that occurs on the Tribe’s lands; in this respect it satisfied IGRA.
Following the release of this opinion, the D.C. court must enter a final administrative mandate of the decision. Essentially this mandate will make the appellate court’s decision final. This will be entered unless the plaintiffs file a timely petition for an en banc hearing.
The importance of this decision is emphasized when you look at the history of the Appeals Court for the D.C. Circuit and issuing en banc review. According to Conduct Detrimental’s own Daniel Wallach, the court only accepts about one out of every 500 petitions for en banc review. This means that any petition will be a long shot.
Following any denial, the plaintiff may try to take it all the way to the Supreme Court which could delay the re-launch of Florida sports betting by years. Given the stance the D.C. court took in interpreting IGRA, circuits now differ in their opinions which could force the Supreme Court to resolve these differences.
So what now? Well, it seems that Florida should be hopeful about sports betting but realistic about the timetable for the actual launch of mobile betting. I would think that, given the number of legal avenues the plaintiffs have for appeals following this decision, Florida will miss yet another year of possible NFL betting revenue.
As the filings for review come in, we will be covering those here on Conduct Detrimental.
Justin Mader is a licensed Illinois Attorney who focuses on sports and gaming law. He is a graduate of the University of New Hampshire Franklin Pierce School of Law where he earned a J.D. and a Sports and Entertainment Law Certificate. He serves as one of Conduct Detrimental's Producers and Editors. He can be reached via Twitter: @maderlaw.