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West Flagler’s challenge to Florida sports betting stands a strong chance of being reviewed by the US Supreme Court, according to prominent gaming attorney Daniel Wallach.

The Supreme Court’s justices will discuss the parimutuel betting operator’s petition to overturn the Seminole Tribe’s sports betting monopoly in conference on 13 June.

If West Flagler proves victorious, Florida sports betting would again go offline – and the future of similar “hub-and-spoke” gaming compacts would be in doubt.

These involve a compact in which online bets are wired through tribal servers to satisfy the Indian land requirements of the Indian Gaming Regulatory Act (IGRA).

West Flagler is challenging whether the compact is compatible with federal law and the constitution in its petition, seeking a writ of certiorari to overturn the DC Circuit’s June 2023 decision.

Important federal question

Prominent gaming attorney and founder of Wallach Legal LLC Daniel Wallach told NEXT.io he is bullish on the court granting certiorari and reviewing the case on the merits.  

He said: “It’s an important federal question that’s led to a division in the lower federal courts and those are the kinds of cases the Supreme Court typically wants to weigh in on.

“And what makes this important is that it impacts tribal gaming rights throughout the United States, it impacts relationships between states and tribes and in countless jurisdictions, as well as relationships between tribal gaming operators and non-tribal gaming operators.

“So, I’m bullish on this court granting the petition and taking it up on the merits.”

However, Wallach emphasised the case is still a long shot, with the court denying 98% of certiorari petitions it gets sent.

Wallach highlighted that the SCOTUS calendar states it will distribute order lists on 17 and 24 of June, where we could see the court’s decision revealed.

Similar circumstances to PASPA repeal

He added that the court may not decide straight away what it intends to do, highlighting the court’s Murphy v. NCAA decision which opened the way to the state-by-state legalisation of sports betting.

Wallach said that it took a significant amount of time in that case for the court to decide whether to award certiorari.

This included at one point asking the solicitor general to weigh in.

“And the longer this plays out in June, it could be beneficial to West Flagler because in the last week of session, the court will have an idea of how many more slots need to be filled for the following year’s term.

“That’s exactly how it played out in 2017 when Murphy vs. NCAA’s petition for writ of certiorari was granted on the last day of the court’s term that year.”

He added that on the day the order came out there were multiple certiorari grants, as the back end of the court’s schedule lends itself to taking on more cases.

“The court is typically a lot more selective earlier in the term, but towards the end of the term, the court may have a better idea of how many additional slots need to be filled for the following year – and this case would seem to hit on all cylinders when it comes to the ‘cert-worthiness’ of a petition.”

What will the court do?

The court has three options to dispose of the petition: denying certiorari, granting certiorari or summary reversal.

Denial would not necessarily be the end of West Flagler’s challenge, argued Wallach.

Since it is not a rejection on the merits, then it would be free to file a new petition in Florida federal district court, alleging a violation of the Equal Protections Clause of the 14th Amendment.

This, Wallach said, could see the parimutuel argue that granting an economic monopoly to a Native American tribe was unconstitutional.

It would also have the option of pursuing a state level challenge, which could see it attempt to claim the compact violated the Florida constitution.

“So, the Supreme Court’s denial of cert would not necessarily be the end of the line for West Flagler. They would still have the proverbial two bites of the apple remaining.”

If the court grants certiorari, then it will review the case on the merits with briefs and oral argument to be scheduled in late 2024 or early 2025.

The third option, which Wallach said is also likely, is that the court may decide to order a summary reversal.

This would see the justices simply overturn the DC Circuit’s judgement without requiring it to be examined on the merits, and was the focus of an amicus brief filed by Wallach.

“Justice Kavanaugh included a very revealing statement in the context of the denial of West Flagler’s emergency application for state,” Wallach said.

“He wrote that if the compact authorised off-reservation gaming operations either directly or indirectly by deeming such wagering somehow to occur on tribal land – it likely is a violation of IGRA.”

What would a summary reversal mean?

Wallach said that depending on the court’s reasoning and how far the holding goes, a summary reversal could cause the termination of online sports betting in Florida.

This could cause the invalidation of the entirety of the Seminole Tribe’s compact with Florida, which includes other aspects including in-person sports betting on tribal lands.

The attorney added this could also negate the Department of Interior’s rulemaking that purports to allow compacted internet gaming in reliance on the DC Circuit verdict.

“So, the summary reversal would have both short-term immediate consequences in Florida and long-term consequences regarding the ability of states and tribes to include off-reservation internet gaming in state-tribal gaming compacts.”

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