By Gina McKlveen, Esq.
The sports betting landscape is ever evolving and changing as more states across the country legalize this betting activity and technology continually helps it develop. Speaking on “Legal Bets: Navigating Sports Betting a Legal Realities” Jill Kelly, former General Counsel of PointsBet, current General Counsel and Vice President of Legal Affairs for the New York Jets and Jennifer Roberts, General Counsel and Vice President of WynnBET tackled topics in sports betting during a panel discussion moderated by Christopher Harrington, Senior Corporate Counsel of DraftKings.
Of note, the panelists emphasized the importance of collaboration, be it aligned interests between operators and sports betters, state partners and league teams, and especially tribal and non-tribal gambling facilities. The latter has been a topic of conversation in political discourse and a topic ripe for litigation in the courts, including the United States Supreme Court (“SCOTUS”).
Specifically, in late October 2023, SCOTUS issued a two-page order denying a request by two non-tribal, Florida-based casinos to temporarily stay a U.S. Court of Appeals For the District of Columbia Circuit (“D.C. Circuit”) decision that permits a compact allowing a Seminole Tribe of Florida to operate online sports betting beyond tribal lands to anyone in the State of Florida. The case, West Flagler Associates, Ltd. et al. v. Debra Haaland, Secretary of the Interior, et al., dates back to June 21 2021, when Secretary of the Interior, Debra Haaland, received a copy of a gaming compact between the State of Florida and the Seminole Tribe of Florida, which expanded the Tribe’s ability to host sports betting throughout the State.[i] The compact was approved by default on August 5, 2021.[ii] Secretary Haaland then wrote an approval letter to the Tribe, explaining this decision. Her letter explained that the Indian Gaming Regulation Act (“IGRA”), allows the Tribe to offer online sports betting to persons who are not physically located on its tribal lands, but insists Florida residents could not place sports bets while physically located on another tribe’s lands.[iii] The reasoning behind Secretary Haaland’s decision was that the IGRA supports negotiations between states and tribes and Florida consented to the compact with the Tribe.[iv]
On August 11, 2021, in accordance with the proper legal procedures, Secretary Haaland published a notice of the compact in the Federal Register.[v] On November 1, 2021, the Tribe launched online betting.[vi] However, following the compact taking effect and prior to the Tribe launching online betting, two non-tribal, Florida-based casinos, West Flagler Associates and Bonita-Fort Myers Corporation, brought a civil action to challenge Secretary Haaland’s approval of the Compact.[vii] The casino-plaintiffs argued that IGRA only authorizes gaming compacts to be made on tribal lands, not non-tribal lands; therefore, Secretary Haaland’s approval of the compact violated federal law.[viii] United States District Judge for the District of Columbia, Judge Dabney L. Fredrich agreed and granted the casino-plaintiffs request to reject the previously-approved compact.[ix]
Secretary Haaland appealed this decision. Last year, on June 30, 2023, the D.C. Circuit reversed the lower court’s decision and reinstated the gaming compact, allowing the Tribe to continue online sports betting throughout the State. With SCOTUS’s recent opinion to decline to stay the D.C. Circuit decision, this sports betting operation remains in effect.[x]
As both panelists, Roberts and Kelly noted, tribes will continue to have a big say in what happens in the sports betting scheme amongst the states. Kelly referenced California as a state that will be keeping a careful eye on the state of online sports betting in Florida, after tribes in California defeated major gambling operators not just from legalizing sports betting in California, but ensuring that the issue will not be brought to a vote until at least 2025, at the earliest.
[i] See https://law.justia.com/cases/federal/district-courts/district-of-columbia/dcdce/1:2021cv02192/234532/43/.
[ii] See id.
[iii] See id.
[iv] See id.
[v] See id.
[vi] See id.
[vii] See id.
[viii] See id.
[ix] See id.
[x] See https://www.supremecourt.gov/opinions/23pdf/23a315_3d9g.pdf.
