West Flagler Has Until Today To Appeal Florida Sports Betting Ruling

• West Flagler has until the end of the day to request a rehearing of a recent D.C. District Court ruling that restoring a 2021 Florida gaming compact
• The compact allows Florida sports betting, craps, and roulette in Seminole Tribe-owned casinos
• West Flagler can also take the case to the Supreme Court

West Flagler will have to make a decision today on appealing a U.S. Court of Appeals for the District of Columbia ruling that restored a 2021 Florida gaming compact.

West Flagler, the plaintiffs in the hearing, have until Monday to file a petition for an “en banc hearing” of the U.S. Court of Appeals decision. If they do not file a petition by today, the official mandate restoring the Florida gaming compact will go into effect on Monday, Aug. 21. If restored, the Seminole Tribe will once again be able to launch its Florida sports betting services, along with craps and roulette in its Florida casinos.

So, like an 80s sitcom, it all boils down to one question…will they or won’t they?

What’s at Stake?

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 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.

West Flagler, however, has options. The plaintiffs in the hearing can take the case to Florida State Court and continue their fight in a new setting. Or, as they’ll have to decide today, can also apply for an “en banc hearing” of the U.S. Court of Appeals decision. If granted, an “en banc hearing” would allow West Flagler’s case to be heard by the entire court, not just a three-judge panel.

West Flagler can also go the Supreme Court route, but we’ll get to that in a minute.

Are Appeal Requests Typically Granted?

But just because an appeal is requested does not mean one will automatically be granted. Daniel Wallach, a gaming law attorney, Founder of Wallach Legal and UNHLaw Sports Wagering, recently told Sports Betting Dime that he expects West Flagler to continue their fight in one way or another, but face long odds to have a rehearing request granted.

En banc hearings are rarely granted by the U.S. Court of Appeals, Wallach said, as the court typically grants only one review for every 500 three-judge panel decisions. An en banc hearing has not been granted since 2021, he noted.

“The interpretation of a gaming statute is not on par with the kinds of issue the D.C. Circuit would typically grant a rehearing on. These are issues that present important federal constitutional questions, separation of power type issues, and this doesn’t strike me as the kind of case that reaches the threshold of being an issue of exceptional importance,” Wallach said.

West Flagler has until the end of the day to request a rehearing. The deadline is not time specific, Wallach said, and could come in at 11:59 p.m. if the plaintiffs choose to do so.

An Appeal in Some Form is Likely

It’d be unlikely for West Flagler to not appeal the decision in some way, Wallach said.

It’s a no-risk proposition for the plaintiffs, who have already sunk a considerable amount of time and money into the legal fight with the Seminole Tribe.

“If West Flagler does nothing, they’ll face immediate competition by virtue of online sports betting being activated in the state[…]there is very little downside to an appeal and there’s no risk. It’s an insignificant cost compared with what they’ve already spent fighting this. If they’re already in this far, I don’t see the logic of conceding at this point,” Wallach said.

The gaming attorney said he expects West Flagler to appeal with the D.C. Circuit and take the fight to SCOTUS as well.

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.

If West Flagler chooses to not appeal the U.S. Court of Appeals decision, it will  have until Sept. 30 to request a writ of certiorari with SCOTUS.

“This is an unsettled question of law. Ultimately, the question of whether the Indian Gaming Regulatory Act applies to tribal gaming outside of Indian lands is a question that has been wrestled with in a number of previous federal court decisions.  The confusion over this issue has prompted proposed federal legislation. Two times this has prompted the Department of Interior to propose new rules recognizing that compact’s can includes provisions for online sports betting,” he said.

What Happens if No Appeal is Made?

So if the unlikely happens and West Flagler doesn’t appeal the ruling today or take the issue to SCOTUS, what is the timeline for the Seminole Tribe to being offering Florida online sports betting again?

It could happen as soon as next week.

The U.S. Court of Appeals for the District of Columbia official mandate will go into effect on Monday, Aug. 21, paving the way for the tribe to launch sports betting and its new table games anytime after.