Is Hard Rock Cleared for Florida Sports Betting Takeoff?

• What happens now that West Flagler’s en banc hearing request has been denied?
• The official mandate from the D.C. Circuit Court will go into effect on Monday, Sept. 18
• Hard Rock may have a window to launch Florida sports betting if West Flagler does not request a motion to stay the court’s mandate

Hard Rock may have the green light to launch Florida sports betting on Monday, Sept. 18, after the U.S. Court of Appeals for the District of Columbia yesterday denied an en banc hearing request from West Flagler for the court’s decision to restore a 2021 Florida Gaming Compact.

But like everything with Florida sports betting, it may not be that simple.

The court’s official mandate will go into effect on Monday, Sept. 18, and could potentially clear the way for Florida sports betting, but West Flagler still has an option that could further delay the Hard Rock launch.

Will There Be A Motion To Stay?

All eyes again turn to West Flagler to see if the plaintiffs in this case decide to file a motion to stay the court’s official mandate. West Flagler will have until Monday, Sept. 18 to issue a motion for stay pending the filing of a petition for a writ of certiorari to hear the case in the Supreme Court.

So what does that mean in plain English? West Flagler can file a motion to delay the official mandate that would restore the Florida 2021 Gaming compact that gives the Seminole Tribe and Hard Rock a monopoly over sports betting if it plans to take the case to the Supreme Court. West Flagler has until Monday, Dec. 11, to file with the Supreme Court.

But just because a party files for a “writ of certiorari” in the Supreme Court does not mean it will automatically be granted one, or that it will automatically be granted a stay. According to federal rules, a motion for a stay “must show that the petition would present a substantial question and that there is good cause for a stay.”

If a stay is granted to West Flagler, it will likely remain in effect until the Supreme Court makes its decision on whether or not to hear the case.

Within the next 7 days, West Flagler will likely move for a stay of the mandate pending the filing of a petition for a writ of certiorari with #SCOTUS. Per Federal Rule 41, the motion must present a “substantial question” and that there is “good cause” for the stay. pic.twitter.com/6pCqBCGsja

— Daniel Wallach (@WALLACHLEGAL) September 12, 2023

Will West Flagler Take Case to Supreme Court?

Sports Betting Dime previously spoke with Daniel Wallach, a gaming law attorney, Founder of Wallach Legal and UNHLaw Sports Wagering, who correctly predicted that West Flagler would request an en banc hearing from the court and not be successful in its request.

Wallach has also maintained throughout our discussions that West Flagler will likely take the case to SCOTUS and request a motion for a stay. Wallach believes SCOTUS may provide West Flagler with the best venue to overturn the D.C. Circuit Court’s decision and could potentially be an issue they’d be interested in hearing.

There could be more support in SCOTUS for West Flagler’s legal position in this matter than there was for the D.C. Circuit ruling, he said. The hook, or logic, that the D.C. Circuit used in concluding that the compact addresses internet wagering as a permitted term is “inconsistent with decisions” made by federal appeals courts in the ninth circuit, 10th circuit, and D.C. Circuit.

SCOTUS may have interest in hearing the case if West Flagler goes that route, Wallach said. The D.C. Circuit court ruling may have triggered a number of grounds that would appeal to a SCOTUS hearing. The conflict around this issue will not subside with the D.C. Circuit’s decision and it is doubtful that it will be the last federal appeals court to weigh in on the issue unless heard by SCOTUS.

“That conflict (IGRA vs. online gaming on tribal land) has never been resolved and I think this is the perfect opportunity for the U.S. Supreme Court to bring certainty and clarity to this issue, which has resulted in all these efforts to change or reinterpret IGRA. If the Supreme Court doesn’t weigh in now, the federal court system will be inundated with further challenges down the road,” Wallach told Sports Betting Dime.

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.