When West Flagler and Associates (WFA) sued the U.S. Department of the Interior over the Florida Seminole Tribe’s gaming compact in 2021, several federal judges — including a Supreme Court justice — suggested that federal court was not the right venue for the complaint.
Almost a year after the Supreme Court declined to hear the case, which ultimately gave the Seminoles a monopoly on sports betting in Florida, a group based in Delaware called Protect the Constitution LLC has filed in what many believe is the proper court. But a constitutional law professor says that while the venue may be correct, the argument is not, and it’s highly unlikely that Florida’s court system will shutter the Seminole’s Hard Rock Bet platform.
“They’re filing in the right court, but there are all sorts of problems with this complaint,” NOVA Southeastern Constitutional Law Professor Bob Jarvis told InGame. “This is the lawsuit West Flagler should have filed at the very beginning instead of going around from federal court to federal court.
“The big takeaway is this is the lawsuit that we were always expecting. Finally the shoe has dropped. But you never want to go into court with the idea that you are trying to attack an agreement that another court upheld. The judges are going to say, ‘Hmm, didn’t the federal court already rule on this? Didn’t the Supreme Court already say no?'”
How the Seminoles got their monopoly
To recap, WFA, a Florida parimutuel, sued in federal court claiming that the 2021 Seminole-Florida compact was invalid. A U.S. District Court initially agreed, but an appellate court overturned that ruling. Ultimately, the Supreme Court upheld the appellate ruling. At issue is whether the Seminoles should be allowed a monopoly for digital sports betting, and if they can offer statewide mobile sports betting.
When the appellate court made its ruling in June 2023, it clearly stated that it was ruling on federal issues and not state concerns, like Amendment 3, now known as Article X, Section 30 of the Florida Constitution.
“For the avoidance of doubt, we express no opinion as to whether the Florida statute ratifying the Compact is constitutional under Fla. Const. art. X, § 30,” the court wrote. “That question and any other related questions of state law are outside the Secretary’s review of the Compact, are outside our scope of judicial review, and as a prudential matter are best left for Florida’s courts to decide.”
The Seminoles are the only tribe in the U.S. with a compact that gives them a monopoly and expressly says bets are considered placed where accepted. That means a bet made anywhere in Florida is considered to have been placed at the tribal server it flows through.
Because of this, the Seminoles can accept wagers from anywhere in Florida, but they are not taxed or regulated by the state.
The tribe has been offering online sports betting since November 2023. It wasn’t party to the federal lawsuit, and it is not named in the state lawsuit. Rather, Protect the Constitution is suing the state, arguing that Florida law calls for any gaming expansion to go to the people.
Amendment 3 was passed in Florida in 2018, the same year that the Supreme Court overturned the Professional and Amateur Sports Protection Act, making legal sports betting a states’ rights issue. The constitutional amendment reads that “Florida voters shall have the exclusive right to decide whether or not to authorize casino gambling in the state of Florida.” The Seminoles had a key part in writing the amendment.
But WFA and, now, Protect the Constitution say that lawmakers executed an end-around by compacting with the tribe and then passing a law to authorize the compact. The Seminoles already had a monopoly on casino gambling. In the spring of 2021, when the compact was signed and the law passed in a special session, some lawmakers warned it would be challenged.
“Personally, I don’t think this is going to survive,” Rep. Randy Fine said at the time.
So far, the compact and the law have survived the challenges and the Seminoles continue to have exclusivity.
Plaintiffs unknown … and unharmed
The latest lawsuit was filed in the Circuit Court of the Second Judicial Circuit in Leon County, Florida, on April 23.
Jarvis says the tribe will likely continue its stranglehold on gaming due to a poorly written section that only loosely identifies the plaintiffs. According to the complaint, “each member of Protect the Constitution LLC offers products in the State of Florida and has suffered harm, including reduced revenue, as a result of the legislation purporting to authorize ‘casino gambling’ throughout the state.”
Protect The Constitution could be any assortment of entities. Do the members include other parimutuels or daily fantasy companies, some of which have been asked to leave the state, or some other gambling-adjacent companies?
WFA is most likely not a plaintiff. Last October, it partnered with the Seminoles for betting on jai alai. As part of the agreement, both parties agreed to “refrain from engaging in any future litigation with respect to the Seminole tribe’s gaming operations.”
Jarvis explained that plaintiffs must show they have “suffered actual harm.” He said WFA clearly did that in both its previous federal and state filings. But Protect the Constitution has no standing in Florida because it doesn’t do business there. If its members do, Protect the Constitution must convince the court to give it “associational standing.”
“It’s better to name the companies and then you have to show very specifically what you would lose,” he said. “You have to wonder why they phrased Paragraph 7 the way they did. You [hide the names] to keep the real identities of the parties hidden. As a lawyer, I wouldn’t file a case like this. I understand this if you represent a rape victim and you identify them as Jane Doe 1 or Jane Doe 2 because you don’t want them to be further traumatized. But as a business?”
Jarvis went on to say that not only would he issue an “F” if a student turned in the complaint, but also that “the court is definitely going to bounce this. If I were the judge, I’d say to the plaintiffs that you have one week to file a proper lawsuit and, if you fail to do that, I will dismiss the case with prejudice.”
Florida Supreme Court in play?
Should the court decide to hear the case, any verdict would likely be challenged by either party, and the case could ultimately land in the Florida Supreme Court.
The case is not unfamiliar to justices there. WFA filed a “writ of quo warranto” on this subject in 2023. The Florida Supremes denied the petition in April 2024, writing “a writ of quo warranto (a legal term used to challenge an elected official’s power) is not for addressing the substantive constitutionality of an enacted law.”
In essence, the court told WFA that it had filed the wrong kind of lawsuit. In addition, WFA’s first filing in Florida was with the state supreme court rather than a lower court, which could be considered a no-no.
The substance of the current case, however, may not matter as much as the politics of it.
“Where does this case ultimately end up? The Florida Supreme Court,” Jarvis said. “And the Florida Supreme Court is in [Gov.] Ron DeSantis’ back pocket. How bad does Ron DeSantis want this? It’s his legacy.”
DeSantis, long a supporter of tribal gaming in Florida, called a special session just to get the enacting legislation passed in 2021. The 20-year compact he crafted with Seminole Chief Marcellus Osceola pays the state $2.5 billion over the first five years. And of the seven Florida Supreme Court justices, five, including Chief Justice Carlos G. Munoz, are DeSantis appointees.
Should the case get that far and should the state supreme court “suddenly grow a spine,” Jarvis said, there are other ways for the Seminoles to maintain their monopoly. In Florida, the tribe could insist that it is a “necessary” party to the case.
Given that it is their wagering platform and financial future at stake, it’s a valid argument. But as sovereign nations, tribes cannot generally be sued in state court. So if the Seminoles choose to “parachute in” and demand to be part of the case, then a Florida court would have to dismiss it, Jarvis said.
Another option would be to go back to the federal government.
“They could just go back to Congress and ask them to rewrite the Indian Gaming Regulatory Act to give them sports betting,” Jarvis said. “I’ve always said that the Seminoles will ultimately win.”
