D.C. Circuit Court Denies West Flagler’s Rehearing Request For Florida Sports Betting

• The U.S. Court of Appeals for the District of Columbia has denied a petition for an en banc rehearing of its decision to restore a 2021 Florida gaming compact
• West Flagler has 90 days to decide if it will petition the Supreme Court of the United States to take up the case
• All eyes now turn to Hard Rock to see if it will launch Florida online sports betting

The U.S. Court of Appeals for the District of Columbia has denied a request from West Flagler for an en banc rehearing of its decision to restore a 2021 Florida Gaming Compact, potentially clearing the way for a launch of Florida online sports betting.

En banc hearings are rarely granted by the D.C. Circuit Court, but it’s another blow to West Flagler’s fight to block a U.S. Department of the Interior approved Florida Gaming Compact that gives the Seminole Tribe a Florida sports betting monopoly and allows its casinos to offer roulette and craps.

West Flagler now has 90 days to decide whether to potentially request a writ of certiorari to hear the case with SCOTUS. The party can also decide to take the issue to Florida courts if it so chooses.

Just a two-page response. Here is the meat of it. pic.twitter.com/Dh5pbp3ylH

— RLinnehanXL (@RLinnehanXl) September 11, 2023

So What’s Next for Florida Sports Betting?

All eyes now turn to the Seminole Tribe and Hard Rock Sportsbook to see if sports betting soon goes live. While there was no official injunction or mandate prohibiting the tribe from offering sports betting, Daniel Wallach, a gaming law attorney, Founder of Wallach Legal and UNHLaw Sports Wagering, previously told Sports Betting Dime the tribe would not want to potentially raise the ire of the court by launching sports betting while a hearing was being considered.

Now that an en banc hearing has officially been denied, it will be interesting to see if the tribe decides to launch sports betting in the state. Under the 2021 Florida Gaming compact, Hard Rock  Sportsbook gained exclusive rights to offer retail and online sports betting in the state.

The official mandate from the court restoring the Florida gaming compact will be issued in a week on Monday, Sept. 18. Is that a potential start date for the Hard Rock, or will it launch sooner now that an en banc rehearing is no longer a possibility?

A request for comment from Hard Rock and the Seminole Tribe was not returned.

Odds were never in West Flagler’s favor that an en banc hearing would be granted, as the court has not granted an en banc rehearing since 2021. West Flager petitioned the court for an en banc hearing on Monday, Aug. 14.

The Hard Rock social media account apparently celebrated the decision this afternoon.

pic.twitter.com/IubpGvejHg

— Hard Rock Bet (@HardRockBet) September 11, 2023

Department of Interior Argued Against Importance

In a response to West Flagler’s request for a rehearing, the Department of the Interior noted that en banc hearings are only granted “in the rarest of circumstances” and the reasons purported by West Flagler do not warrant a rehearing.

“The panel correctly held that the Secretary had no duty to disapprove the Compact for the straightforward and fact-specific reason that the Compact can—and therefore must—be read in a way that is consistent with IGRA. That narrow and reasonable reading—which has been endorsed by both parties to the Compact and by the Secretary belies any suggestion that the Compact blesses the off-Indian land wagering that West Flagler believes violates the Florida constitution, and leaves fully intact West Flagler’s ability to challenge the Florida statue authorizing those wagers,” the response reads.

Both questions of “exceptional importance” raised by West Flagler are based on a contrary reading of the gaming compact that the original three-judge panel rejected, the Department wrote in its response.

“West Flagler’s arguments for rehearing are strawmen, premised on its erroneous assertion that, by referencing the state-sanctioned wagers, the compact—and the secretary’s approval thereof— purport to unilaterally legalize the placement of those wagers and the State regime for regulating them. But, as West Flagler acknowledges, the panel held in no uncertain terms that the Compact does not do that. And the panel did so while making scrupulously clear that neither its opinion nor the Secretary’s approval prevents West Flagler from challenging the relevant State law in Florida’s courts. Rehearing is unwarranted,” the Department noted.

History of Florida Gaming Compact

In late June, a three-judge panel for the U.S. Court of Appeals for the the District of Columbia unanimously agreed to overturn a ruling from U.S. District Court Judge Dabney L. Friedrich that declared a 2021 Florida gaming compact violated the Indian Gaming Regulatory Act (IGRA).

The gaming compact was thrown out by Friedrich in November 2021. Ultimately, Friedrich determined the compact violated the conditions set forth by the Indian Gaming Regulatory Act (IGRA) that limits tribal gaming to the confines of tribal lands. The Seminole Tribe argued in the gaming compact that because the servers that processed the online sports bets were located on tribal land, then the bets themselves were placed on tribal lands.

The three-judge panel for the U.S. Court of Appeals for the the District of Columbia disagreed with her ruling.

“We see the case differently. IGRA ‘regulate[s] gaming on Indian lands, and nowhere else.’ Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 795 (2014). 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[.]” Id. at 796. In fact, IGRA expressly contemplates that a compact ‘may’ do so where the activity is ‘directly related to’ gaming,” the judges wrote in the ruling.