Another day, another motion for a preliminary injunction of Florida online sports betting.
West Flagler Associates, on behalf of several Florida pari-mutuels, has filed a second motion in the state for summary judgement and preliminary injunction to block the Nov. 15 launch of Florida online sports betting. It is the second motion filed by West Flagler in the last two weeks, the first being filed in a Washington, D.C. federal court on Sept. 15.
Legal challenges to Florida online sports betting spell trouble.
Daniel Wallach, principal at Wallach Legal, the country’s first sports betting-focused law firm, discussed the newly filed Florida motion with Saturday Down South and its key differences with the motion filed in Washington, D.C.
“The Florida lawsuit does not name the Department of the Interior, it’s seeking to challenge the Florida statutory provision approving the compact primarily on the basis that it creates disparate treatment between tribal entities and non-tribal entities. It grants the Seminole Tribe a monopoly, while not only forbidding non-tribes from having the same rights, but it ups the criminal penalty from a misdemeanor to a felony,” Wallach told Saturday Down South.
It creates permissible activity through a monopoly to the Seminole Tribe, while imposes the prospect of a felony on anyone else offering online sports betting, he said.
The Florida lawsuit raises an IGRA challenge, but also raises violations of the Wire Act and the Unlawful Internet Gambling Enforcement Act of 2006. The D.C. case shares some overlap in similarity with the Florida lawsuit, but mainly seeks to challenge the Department of the Interior’s approval of the gaming compact.
“That’s an administrative challenge brought under federal law and the Administrative Procedure Act. You have to sue the DOI in Washington, D.C., to get that relief. It’s governed by a different standard. The standard in the D.C. case is whether the deemed approval of the compact by the federal agency was arbitrary and capricious, or otherwise not in conformity with the law,” Wallach said.
Florida will likely receive a ruling on online sports betting through the D.C. lawsuit first, which has a hearing date set for Nov. 5. The state had targeted Nov. 15 as a potential online sports betting launch.
What does this mean for Florida’s sports betting launch?
So what does this all mean for the chances of Florida online sports betting? Or Florida’s in-person sports betting launch scheduled for Oct. 15?
First the good news. Wallach said neither lawsuit is challenging the launch of Florida in-person sports betting. There is no current impediment to its planned launch on Oct. 15.
And what about the bad news?
“My advice for sports bettors in Florida is tank up your car with a full tank of gas, drive to the Tampa Hard Rock or the Hollywood Florida Hard Rock, because that’s the only way you’re going to be able to legally bet in Florida,” he said.
The statutory language and agency interpretation of the law are clearly on West Flagler Associates sides in both of the filed lawsuits. It’s “about as much of a slam dunk as you could see in the law,” Wallach said.
These motions will be heard in an Article III regulated court by an objective judicial body that will not be swayed by partisanship or politics. Prior agency interpretations of IGRA, two failed prior attempts by Congress to amend IGRA to expand its reach to include online sports betting, a Ninth Circuit U.S. Court of Appeals affirmation that bettors placing mobile wagers outside tribal lands is not protected by IGRA and Florida’s prior admission on an almost identical point all lead to trouble for the online sports betting component of the gaming compact, Wallach said.
All the Seminole Tribe and the state of Florida have going for them is the potential comparison to New Jersey, Michigan, West Virginia and Rhode Island and how their state legislatures define where a bet takes place. These states have deemed that a sports bet takes place where the server that processes the wager is located, not where the bettor is located.
It doesn’t add up to a whole lot in favor of Florida and the Seminole Tribe.
“What the state and the tribe are trying to do here has been rejected by other federal courts, and by every federal court decision that has addressed the issue,” he said.
“The fact that this charade has gone on as long as it has is absolutely stunning to me as an appellate lawyer, that this argument, this deemed accepted theory should even have a chance under federal law.”
A hearing date has not yet been set for the Florida lawsuit.