What’s Next for West Flagler, the Seminoles, and Florida Sports Betting?

• The latest rehearing request may delay Florida sports betting into the NFL season
• D.C. Circuit Court of Appeal en banc requests are rarely granted
• West Flagler can also choose to take case to Supreme Court

The Florida sports betting landscape has been put into another holding pattern as West Flagler Associates filed a petition for an en banc hearing of a D.C. Circuit Court’s decision to restore a 2021 Florida gaming compact.

West Flagler Associates have long contended that the Florida gaming compact is illegal and should not allow online sports betting to take place outside of Indian lands. The en banc request, if granted, would put the case in front of all 11 judges of the D.C. Circuit Court, instead of just the original three-judge panel that unanimously agreed to overturn the original ruling.

But will an en banc rehearing be granted? What’s next if it isn’t? When could Florida actually see sports betting?

What’s Next In the Process?

First a little history. The Florida gaming compact was thrown out by U.S. District Court Judge Dabney L. Friedrich in November 2021 after West Flagler filed a lawsuit against the U.S. Department of the Interior Secretary Deb Haaland for allowing the compact between the state and Seminole Tribe to proceed. Friedrich determined the compact violated the conditions set forth by the Indian Gaming Regulatory Act (IGRA) limiting tribal gaming to the confines of tribal lands. The Seminole Tribe argued in the gaming compact that because the servers that process the online sports bets are located on tribal land, then the bets themselves are placed on tribal lands.

This past June, a three-judge panel for the U.S. Court of Appeals for the District of Columbia unanimously agreed to overturn Friedrich’s ruling.

West Flagler Associates had until Monday, Aug. 14, to file a petition an en banc hearing of the ruling. If granted, an en banc hearing means the case would go before all 11 judges of the U.S. Court of Appeals for the District of Columbia.

A spokesperson for the court told Sports Betting Dime that there is no timeline for an en banc hearing request and it can sometimes takes “months” for a determination to be made.

To be granted an en banc hearing, six of the 11 district judges have to approve the request. Considering that three judges have already ruled against West Flagler and would likely not approve the request, six of the remaining eight judges would have to agree to a rehearing.

Additionally, en banc hearings are rarely granted. The last en banc hearing to be granted was in 2021.

“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,” Daniel Wallach, a gaming law attorney, Founder of Wallach Legal and UNHLaw Sports Wagering, recently told SBD.

So When Could Florida See Sports Betting?

It depends on when the request is either granted or denied. If it’s granted, a rehearing can take months to play out before a final determination is made. If an en banc hearing request is denied, the original three-judge panel rule will go into effect after a week and the Seminole Tribe would be clear to launch sports betting.

It’s unlikely that the court will take “months” to determine if a rehearing is necessary, so if one is not granted Florida could see sports betting early on in the NFL season.

However, if a hearing is not granted, West Flagler still has legal options. It will have 90 days to request a writ of certiorari to hear the case with SCOTUS. Wallach previously told SBD he expects West Flagler to take this issue to SCOTUS if an en banc hearing is not granted.

“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.

It’s also important to note that the Seminole Tribe could launch sports betting (and craps and roulette) in its casinos right now if it chooses. There is no injunction barring them from doing so, but the risk for the tribe may be too great, Wallach said.

“The risk the Seminole Tribe would incur by launching prior to the official mandate, that might be viewed negatively by some of the appellate judges on the D.C. bench that would be ultimately deciding on granting a rehearing, so why poke the bear?” he said.