West Flagler’s filing to overturn the DC Circuit’s motion to stay is pending a writ of certiorari – which is the legal term for a petition to review the case. If granted, Florida cannot launch sports betting until the case is resolved.
The operator committed to filing this within 45 days. Since the petition is dated 6 October, this means West Flagler has a 20 November deadline to submit its case the court.
“It is always difficult for anyone, no matter how compelling the facts may be, to obtain a stay from SCOTUS,” managing partner of Ifrah Law Jeff Ifrah told iGB. “If the request is denied, the battle may move to Florida.”
West Flagler is battling Florida’s governor Ron DeSantis in the courts. The case concerns whether he exceeded his authority when he authorized the compact due to a state constitutional amendment prohibiting an expansion of casino gambling in the state without voter approval in a referendum, sometimes called Amendment 3.
The petition is the latest development in the West Flagler case, which has seen the operator attempt to use the courts to stop the Seminoles from launching sports betting statewide through its tribal compact with Florida.
The gaming compact, first agreed in 2021, grants the Seminoles the exclusive right to offer sports betting in the Sunshine State. It does this by routing all wagers originating from off tribal land through the tribe’s servers, known as the “hub-and-spoke” model.
How we got here
Since first agreed, Florida’s compact with the Seminoles has been aggressively disputed in the courts.
West Flagler filed its first suit in the case in the US District Court of Columbia in September 2021. Within, it argued the mobile aspect of the compact effectively authorized gaming off federal lands, in violation of the state constitution and multiple federal laws.
Judge Dabney Friedrich agreed with West Flagler’s argument, ruling that the compact “authorizes sports betting both on and off Indian lands”.
However, the Seminoles proved victorious on appeal, when a three-panel judge in the DC Circuit court confirmed the compact from federal objections.
West Flagler requested a rehearing en banc – meaning that it would involve all the judges on the bench However, the DC Circuit rejected this request.
Following this, the Florida parimutuels filed a motion for the court to continue its stay on the Seminoles launching sports betting until the Supreme Court heard the case, a motion which was also denied.
Three questions of exceptional importance
West Flagler argued three “questions of exceptional importance” are raised by the DC Circuit’s decision. It argues these are such that SCOTUS should grant a stay in the DC Circuit decision pending review.
These are:
- Whether the Indian Gaming Regulatory Act (IGRA) authorizes the federal government to approve a compact that allows a tribe to conduct gaming activities off Indian land.
- Whether the Unlawful Internet Gaming Enforcement Act (UIGEA) is violated when an Indian tribe uses the internet to offer gambling outside of its lands.
- Whether the Equal Protection Clause of the Constitution is violated by a federal government approval of an IGRA compact in which a state gives an Indian tribe a statewide monopoly on online sports betting.
Did the IGRA permit the federal government to approve the case?
In support of the IGRA question, West Flagler highlighted the 2014 Michigan v. Bay Mills Indian Community case. It quoted the court’s opinion that “everything – literally everything – in IGRA affords tools… to regulated gaming on Indian lands, and nowhere else”.
In its June ruling, the DC Circuit rejected this argument. In the opinion it said it “deems” mobile bets to be placed on Indian land. As such, the compact did not violate prior case law.
West Flagler argued the holding was “inconsistent” with decisions from other circuits.
“There is therefore a strong likelihood this court will grant certiorari and reverse the circuit opinion on this IGRA question,” said the operator.
Does the compact violate the UIGEA?
West Flagler pointed to a Nine Circuit court decision, California v. Iipay Nation of Santa Ysabel, in support of its petition.
In this case, the State of California and the US proved successful in preventing the Iipay Nation from operating an internet bingo casino, citing the UIGEA.
“Iipay Nation was clearly correct,” said West Flagler, arguing this provides a reason for SCOTUS to take up the case.
The DC Circuit had said the West Flagler’s UIGEA argument was entirely hypothetical since the compact could not facilitate such a violation.
Is the Seminoles’ monopoly an Equal Protections clause violation?
In the filing, West Flagler argued no case supports “giving such an Indian tribe such a naked preference” not related to its sovereign status, its tribal lands or culture.
However, West Flagler said the closest case was Williams v. Babbitt, in which the Ninth Circuit overturned a rule preventing non-natives from working in the Alaskan reindeer industry since the industry was “not uniquely native”.
The DC Circuit had initially dismissed West Flagler’s fifth amendment argument, stating that “promoting the economic development of federally recognized tribes” is constitutional.