Staff Reports
The U.S. Supreme Court has granted an extension to a pair of gambling companies challenging the Seminole Tribe of Florida’s Gaming Compact.
The petitioners, led by West Flagler & Associates, have been working to unravel the Gaming Compact for the past two years by arguing that the Governor and state Legislature overstepped their authority by granting the Tribe the exclusive right to offer sports betting in Florida.
The parimutuel companies have also argued that the “hub and spoke” model — which allows bets to be placed remotely, such as through an app — is not authorized under the federal Indian Gaming Regulatory Act.
Thus far, federal courts have disagreed. A D.C. Circuit Court judge sided with the parimutuels, but the decision was overturned by the U.S. Court of Appeals for the D.C. Circuit and the same court subsequently refused a request for a rehearing.
The Tribe paused its sports betting operation and pulled its app, Hard Rock Bet, from app stores for much of the past two years as the challenge worked its way through the courts. Following the federal appeals court rulings, however, they resumed offering remote sports betting early last month, initially to a limited set of customers before rolling it out to everyone on Nov. 7.
The move took West Flagler and Bonita-Fort Myers by surprise, causing them to file an emergency request asking the Florida Supreme Court to place a stay on the Compact and take up their case.
The state Supreme Court rejected the request for a stay and it is unclear whether it will hear the case — the petitioners had not previously challenged the Compact at the state level and filed what is known as a “writ quo warranto” asking the Court to take up the case directly despite it not having been heard in state circuit or appeals courts.
The Florida Supreme Court rarely grants such requests, although there is precedent when it comes to gaming compacts. In 2007, the Court heard a challenge filed by then-state House Speaker Marco Rubio arguing that then-Gov. Charlie Crist had no authority to sign a Gaming Compact with the Tribe without legislative approval.
The Florida Supreme Court found problems with the Compact and tossed it. The Legislature then passed a law requiring the Governor to negotiate a new compact under terms dictated by the Legislature and requiring that compacts be ratified by the Legislature.
West Flagler’s challenge is less likely to compel the Florida Supreme Court to take action, although the Court may take up the case to quell any uncertainty regarding the Gaming Compact and to prevent a lengthy trek up the ladder of state circuit and appeals courts.
Still, the state-level request has added a wrinkle to West Flagler’s challenge. Now that it is juggling state and federal challenges, a ruling in either case would greatly impact the other. That places the company in a position where its only option is to wait and see which court acts first.
“If the Florida Supreme Court rules in Applicant’s favor in connection with the State Petition, such ruling will impact the scope of Applicants’ petition for a writ of certiorari. But if the Florida Supreme Court denies or fails to rule in Applicant’s favor, the important statutory and constitutional issues raised by the Circuit Opinion would certainly remain, including the ‘serious equal protection issues’ observed by Justice (Brett) Kavanaugh,” the extension request reads.
Chief Justice John Roberts granted the request, pushing the deadline to Feb. 8. Depending on whether the state Supreme Court takes up the case, West Flagler may be forced to file another extension request with SCOTUS. If SCOTUS agrees to hear the case — which many onlookers believe unlikely — the delay would likely push the case to the SCOTUS term that begins in October of next year.
