UPDATED: SCOTUS to Ponder Potential Florida Sports Betting Relaunch

Sep 17, 2023; Tampa, Florida, USA; Tampa Bay Buccaneers quarterback Baker Mayfield (6) throws the ball against the Chicago Bears during the second half at Raymond James Stadium. Mandatory Credit: Kim Klement Neitzel-USA TODAY SportsWest Flagler Associates have requested a stay of the D.C. District Court’s mandate to validate a 2021 Florida gaming compactIf a stay is granted it could delay a potential Florida sports betting launch until early 2024 or as late as 2025Chief Justice John Roberts issued a temporary stay of the mandate until Wednesday, Oct. 18

West Flagler is looking to the highest court in the country to settle the issue of Florida sports betting once and for all.

West Flagler Associates applied for a stay with the Supreme Court of the United States for the D.C. Circuit Court’s recent mandate to restore the state’s gaming compact. The stay will be pending submission of a writ of certiorari to hear the case in SCOTUS, which West Flagler intends to submit by Nov. 20.

The gaming compact, approved in 2021, allows the Seminole Tribe to offer retail and online sports betting, as well as roulette and craps, in its Florida casinos.

BREAKING: Temporary Stay Granted by SCOTUS

This afternoon, Supreme Court Chief Justice John Roberts granted a temporary stay of the D.C. Circuit Court’s mandate to restore the state’s gaming compact.

“Upon consideration of the application of counsel for the applicants, it is ordered that the mandate of the United States Court of Appeals for the District of Columbia Circuit, case No. 21-5265 (consolidated with 22-5022), is hereby recalled and stayed pending further order of the undersigned or of the court,” Chief Justice John G. Roberts wrote today in a one-page order.

The stay is a temporary one, as Chief Justice Roberts has ordered a response from the U.S. Department of the Interior to be filed on or before Wednesday, Oct. 18, at 5 p.m.

This is not a final ruling on West Flagler's application for a stay of the mandate. It's just a temporary stay — for at least 5 more days — to allow for briefing on the issue before J. Roberts or the full Court rule on the application. https://t.co/Jj6RD2O89m

— Daniel Wallach (@WALLACHLEGAL) October 12, 2023

The mandate will be recalled until at least the full court makes a determination on West Flagler’s request for a full stay.

Three Questions of Importance for SCOTUS

In its petition, West Flagler raises “three questions of exceptional importance” it believes SCOTUS should ultimately decide. These questions are as follows:

The D.C. Circuit Court’s opinion raises the question of whether the Indian Gaming Regulatory Act (IGRA) authorizes the federal approval of a gaming compact that allows a tribe to conduct sports betting off tribal lands.The court’s opinion raises the question of whether the Unlawful Internet Gambling Enforcement Act (UIGEA) is violated when a tribe uses the internet to offer gambling in locations off its own land.The court’s opinion raises the question of whether the Equal Protection Clause of the Constitution is violated by a federal government approval of an IGRA compact in which a state gives a tribe a monopoly to conduct online sports betting while simultaneously making it a felony for anyone else to do so.

Hamish P.M. Hume, counsel for West Flagler, wrote in the petition that there is “good cause for the stay.” If the Seminole Tribe is allowed to permit online sports betting through the state, it will upset the status quo in Florida.

“Absent a stay, the compact will give rise to hundreds of thousands, if not millions, of sports betting transactions that violate both state and federal law before this Court has the opportunity to address the merits,” Hume noted.

If a stay is not granted, Hume wrote that “irreparable harm” will occur to the citizens of Florida.

“There is no doubt that, upon the issuance of the mandate in this matter, the Tribe will launch a mobile sports betting application accessible throughout Florida. App. 157–67. Florida’s citizens have not authorized this major shift in public policy, which was enabled solely through the Circuit Opinion’s expansion of IGRA. Even if later overturned by this Court, Florida’s citizenry will have been irreparably harmed by the conduct of a wide-spread illegal gaming operation in the interim,” he wrote.

So What Does This All Mean?

It means potential delays, even as far out as 2025 if SCOTUS decides to hear the case.

According to  Daniel Wallach, a gaming law attorney, Founder of Wallach Legal and UNHLaw Sports Wagering, West Flagler will have to show that its forthcoming writ of certiorari will present a “substantial question” to SCOTUS and prove there is “good cause” for a stay.

It’s a high burden for West Flagler to reach, Wallach noted on his X feed today.

The above standard requires the moving party to show: (1) a “reasonable probability” that the Supreme Court will grant certiorari; (2) a “fair prospect” that #SCOTUS will reverse the decision below; and (3) a likelihood that irreparable harm will result from the denial of a stay.

— Daniel Wallach (@WALLACHLEGAL) October 12, 2023

So what happens if SCOTUS grants West Flagler a stay? There are two possibilities moving forward. One, SCOTUS grants West Flagler the stay and the mandate is put on hold while the court debates the writ of certiorari.

If SCOTUS decides to not take up West Flagler’s case, it would likely make that decision in early 2024 and the mandate would go back into effect.

However, if SCOTUS grants the stay to West Flagler and decides to accept the writ of certiorari to hear its case, the stay would remain in effect throughout the entire process. A final decision on the case likely wouldn’t happen until 2025.