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Continued Legal Challenges Might Not Delay Florida Sports Betting For Long

Written By Matthew Kredell on October 6, 2023
Florida Sports Betting Update

With a filing in the Florida Supreme Court and an expected appeal to the US Supreme Court, it sometimes feels as though the Florida sports betting legal saga will never end.

But, more likely than not, these legal challenges won’t take long. This means the relaunch of Florida sports betting could still be within months rather than years.

There remains much uncertainty around what happens next in the legal challenge of the Seminole compact and when the tribe will feel comfortable relaunching the Hard Rock Bet app.

PlayUSA spoke with Florida gaming and sports attorney Daniel Wallach and listened to his Conduct Detrimental podcast “Lawyers, Lines, and Money” to put together three possible timelines for Florida sports betting.

“When we’re dealing with a sovereign nation that enjoys sovereign immunity for its commercial activities on tribal land and even outside tribal land, there’s really very little if anything that the state can do to penalize the Seminole tribe for launching their digital sportsbook prematurely,” Wallach told PlayUSA. “I think the greater risk is on the federal side, which is why I’m more closely watching what’s happening in the US Supreme Court. That application is going to be more meaningful on the issue of the timing of the relaunch.”

Where legal challenges of the Seminole compact stand

Florida parimutuel owner West Flagler filed a lawsuit challenging the Seminole compact in 2021.

In June, the DC Circuit US Court of Appeals overturned a District Court ruling, reaffirming the compact. The DC Circuit then denied West Flagler’s petition to rehear the case.

That leaves petitioning the US Supreme Court as the only option to continue the federal case. West Flagler has indicated it would do so. In a motion with the DC Circuit, West Flagler asked for a stay of the mandate reinstating the compact while the plaintiff appealed to the US Supreme Court. The DC Circuit denied the motion.

On Friday, the DC Circuit officially issued its mandate, meaning the Seminole compact with its sports betting provisions is back in play.

West Flagler has until Dec. 11 to petition the US Supreme Court to review the case.

In the meantime, the plaintiff began a challenge at the state level. But, curiously, West Flagler didn’t file a lawsuit challenging the constitutionality of sports betting expansion under Amendment 3.

Instead, West Flagler went right to the Florida Supreme Court and filed a petition of quo warranto, which is Latin for “by what authority.” This isn’t the same as filing a lawsuit that will slowly work its way through the state courts. Petitions of quo warranto are typically decided within three to six months, according to Wallach.

A petition for writ of quo warranto essentially challenges that Gov. Ron DeSantis exceeded the limits of his authority through an official act.

“The argument is that Gov. DeSantis and the state legislature exceeded their constitutionally delegated powers when they approved online sports betting outside of the voter approval process mandated by Amendment 3,” Wallach said.

How Florida sports betting could relaunch this year

Within the state filing, West Flagler asked the court to temporarily suspend the state’s mobile sports betting law for the duration of the proceeding. Wallach said the plaintiff would still have to file a motion requesting that order. And he doesn’t expect it to succeed.

“It would seem to me to be a very uphill battle to persuade the Florida Supreme Court to temporarily suspend all mobile sports betting when the original proceeding has such a relatively short life cycle to begin with,” Wallach said.

In the federal motion to stay the mandate, West Flagler asked if the DC Circuit would withhold the mandate for just a couple of weeks while it filed with the US Supreme Court to stay the mandate.

The DC Circuit declined. Given that West Flagler already wrote of this intent, it’s expected to file an emergency application with the US Supreme Court to recall or stay the mandate.

Wallach said the US Supreme Court typically decides such filings on the emergency docket within 7 to 22 days. Denial makes the petition for cert less likely to be granted.

So, within the next month, there could be decisions from the state and federal supreme courts not to hold up sports betting while they review the proceedings.

The Seminoles could view those rulings as greenlights to relaunch Florida sports betting. Wallach said the US Supreme Court’s ruling on an emergency application is the decision to watch.

“The greater risk is being in the crosshairs of the United States Supreme Court. But if the Supreme Court denies the emergency application, I think that would be the trigger for the relaunch of online sports betting regardless of what’s pending in the state supreme court.”

Florida sports betting relaunches by middle of 2024

If the Seminoles want to be cautious and wait for the favorable conclusion of federal and state challenges to the compact, that could happen by the middle of 2024.

“I guess the question of the day is will the Seminole tribe wait for the conclusion of all federal proceedings and all state proceedings before they relaunch the sportsbook,” Wallach said.

Petitions for quo warranto typically don’t take long. The Florida Supreme Court requested that DeSantis file a response to West Flagler’s petition by Nov. 1. West Flagler will have until Nov. 21 to counter the governor’s response.

Following the written statements, Wallach expects West Flagler would ask to make oral arguments. He sees this taking the decision into January or February. And he expects the Florida Supreme Court to stand behind the governor, as it has all previous times petitioners filed this writ during the DeSantis administration. DeSantis appointed five of the seven Florida Supreme Court justices.

“So the Florida Supreme Court basically has shown through their actions that they’re going to defend or at least support Gov. DeSantis’ initiatives. … The proof is in the pudding. Fourteen cases, not once has a writ of quo warranto ever been issued against Gov. DeSantis.”

If West Flagler files a petition for cert with the US Supreme Court, Wallach expects the high court would decide whether to take the case by the second quarter of 2024, no later than June.

Why Florida sports betting wouldn’t relaunch for years

West Flagler could still file a legal challenge of Amendment 3 in circuit court. Amendment 3 requires all Florida gaming expansions go to voters, but it has a specific carveout for tribal gaming set up through compact.

However, Wallach thinks a negative decision from the Florida Supreme Court on quo warranto would affect West Flagler’s chances to succeed in any other state filing.

“The risk is if you lose on the petition for writ of quo warranto and the court engages in any discussion of the merits in the order denying the petition, that will have preclusive effects barring any future lawsuits from being filed on that issue,” Wallach said.

So the real threat to delay Florida sports betting for years is at the federal level. But the US Supreme Court only hears about 70-to-80 cases a year.

Wallach thinks the issue of the compact’s statewide sports betting model under the Indian Gaming Regulatory Act has a much greater chance than the typical US Supreme Court petition. But it’s still a long shot.

“If the normal statistical likelihood is under 2%, I would give this one north of 20%. It’s an important question of federal law that impacts so many different stakeholders — tribes across the United States, states, local governments in every state, casinos and other non-tribal gaming stakeholders, online sports betting companies. If cert is granted, there is going to be more amicus briefs filed in this case than there was in Murphy v. NCAA, I guarantee it.”

If the US Supreme Court accepts the petition, Wallach thinks the case could drag on to June of 2025. And the Seminoles would be more likely to hold off on relaunching sports betting with the case before the highest federal court.

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Matthew Kredell

Matthew Kredell serves as senior lead writer of legislative affairs involving online gambling at PlayUSA. He began covering efforts to legalize and regulate online gambling in 2007 after federal passage of the Unlawful Internet Gambling Enforcement Act disrupted his hobby of playing small-stakes online poker. He has since interviewed more than 300 lawmakers around the country and written extensively about online gambling legislation. He has led coverage of bills to legalize online gambling in most states. A lifelong Angeleno and USC journalism alum, Matthew started his career working as a sportswriter for a decade at the Los Angeles Daily News. He has written on a variety of topics for Playboy Magazine, Men’s Journal, Los Angeles magazine, LA Weekly and ESPN.com.

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