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Seminole Tribe asks FL Supreme Court to toss challenge to mobile sports betting

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Seminole Tribe asks FL Supreme Court to toss challenge to mobile sports betting

Dec 08, 2023 | 3:38 pm ET
By Michael Moline
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Seminole Tribe asks FL Supreme Court to toss challenge to mobile sports betting
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Sports betting line at the Westgate Las Vegas Resort & Casino in Las Vegas. Credit: Ethan Miller/Getty Images 2016

The Seminole Tribe of Florida has joined the DeSantis administration in asking the Florida Supreme Court to reject a challenge by rival gambling interests to the online sport betting operation that the tribe recently stood up following a green light from the federal courts.

West Flagler Associates Ltd. and Bonita-Fort Myers Corp., respectively a casino and a poker room, have challenged a deal with the state that allows the tribe to offer sports betting from anywhere if the bets get routed through servers on tribal land. The Legislature approved the so-called “Seminole Gaming Compact” in 2021, specifically allowing the “hub and spoke” betting system.

The state’s share of the take is estimated at $2.5 billion during the first five years.

West Flagler and Bonita claim the deal violates the federal Indian Gaming Regulatory Act, or IGRA, which regulates tribal gambling, and Florida’s Amendment 3, approved by the voters in 2018, which requires a public referendum to expand casino gambling in the state.

The U.S. Supreme Court allowed to stand a ruling by the U.S. Court of Appeals for the District of Columbia Circuit upholding the sports-betting agreement. The tribe subsequently began offering remote sports betting on a limited basis while gradually adding customers.

The legal challenges come at a time when big college bowl games will be playing at the Rose Ball and Sugar Ball, plus the NFL Super Bowl in February.

The tribe is not a party to the dispute because of its sovereign immunity, but filed an amicus brief on Friday before the Florida Supreme Court that repeats arguments filed on Dec 1 on behalf of the DeSantis administration: that Amendment 3 in no way disallows the sports betting arrangement and neither does the federal law.

Tribe’s rights

The brief cites Amendment 3 language preserving “the right of the state and tribes ‘to negotiate gaming compacts pursuant to [IGRA] for the conduct of casino gambling on tribal lands.’ Nowhere does the plain language indicate that the gaming the parties agree to include in a compact must occur only or exclusively on tribal lands,” the brief adds.

“The Legislature has authority to deem the initiation of online sports wagering to occur in one location or another as a matter of law, and Amendment 3 by its plain language did not alter or remove that authority. In fact, it preserved it,” the tribe’s brief continues.

Moreover, “[t]he Legislature was not charting any new ground in taking this approach. The Implementing Law [for the gambling compact] was modeled on laws enacted by six other states, each with constitutional or statutory restrictions on where gaming is permitted, that authorized forms of online gaming, including sports betting, by deeming the entire transaction to occur at the location where the wager is accepted,” the brief says.

A number of those states had enacted those similar betting systems well in advance of passage of Amendment 3, and the Legislature and Gov. Ron DeSantis, who negotiated the compact with the tribe, were well aware of this history, it adds.

“Moreover, Amendment 3 expressly references IGRA, so it must be interpreted in light of that framework. As held by the D.C. Circuit, IGRA allows parties to use its allocation of jurisdiction provisions to deem wagers to occur where received for regulatory purposes. There is no evidence that Amendment 3 was intended to limit this preexisting authority.”

Exemption

Amendment 3 reads in part, “[N]othing herein shall be construed to limit the ability of the state or Native American tribes to negotiate gaming compacts pursuant to the Federal Indian Gaming Regulatory Act for the conduct of casino gambling on tribal lands, or to affect any existing gambling on tribal lands pursuant to compacts executed by the state and Native American tribes pursuant to IGRA.”

The brief notes that the compact “requires the tribe to contract with all requesting qualified pari-mutuels, allowing them to participate by marketing the tribe’s sportsbook in exchange for up to 60% of the tribe’s associated profit.”

It adds that the courts are supposed to presume the constitutionality of a state law unless it “positively and certainly” is “opposed to the Constitution.”

“The Legislature, in enacting the Implementing Law by an overwhelming bipartisan majority, reasonably interpreted the IGRA exception to preserve this authority. The Legislature’s contemporaneous, rational interpretation of a constitutional provision should be accorded deference,” the brief reads.

In addition, the brief filed by Attorney General Ashley Moody’s office on behalf of the DeSantis administration argues the West Flagler/Bonita case is not properly before the Florida Supreme Court in part because they waited 2 1/2 years to file, until they’d lost in federal court.

Moreover: “Sports betting is not ‘casino gambling’ as that term is defined in the Florida Constitution, because it is not the type of game typically found in casinos,” the brief reads. Amendment 3’s “citizen-initiative requirement is therefore inapplicable. But either way, the compact and its implementing legislation are squarely within [the amendment’s] IGRA exception,” it adds.