• SCOTUS denied a request from West Flagler Associates for a stay of the Florida sports betting mandate 
• Supreme Court Chief Justice John Roberts’ temporary stay of the D.C. Circuit Court’s mandate to restore the state’s gaming compact on Thursday, Oct. 12, is lifted
• The decision to deny the stay may not be good new for West Flagler’s chances to have its lawsuit heard by SCOTUS

The Supreme Court of the United State has denied West Flagler’s request for a stay of the D.C. Circuit Court’s mandate that would legalize Florida sports betting, which may not be a good omen for West Flagler’s chances moving forward.

SCOTUS tonight denied the request and lifted a temporary stay of the mandated ordered by Chief Justice John Roberts on Oct. 12.

Despite the ruling, Justice Brett Kavanaugh issued an opinion upholding the stay denial, but noted that he held separate concerns with the 2021 Florida gaming compact.

Stay Denial Could Be Bad News for West Flagler

For SCOTUS to grant a stay, West Flagler had to satisfy several pieces of criteria. The party had to establish that at least four SCOTUS justices would consider the issue sufficient to grant certiorari; that a majority of SCOTUS would likely vote to reverse the judgement; and a likelihood of irreparable harm would result from the denial of a stay.

West Flagler failed to satisfy these requirements and the stay was denied by SCOTUS.

The denial of the stay means the D.C. Circuit Court’s mandate to restore the state’s gaming compact is now back in effect. The 2021 gaming compact allows the Seminole Tribe to offer retail sports betting, online sports betting through a “hub-and-spoke” system where servers on tribal land would process bets placed throughout the state, and craps/roulette at tribal casinos.

“The denial of the stay by the U.S. Supreme Court is very good news. The Seminole Tribe of Florida is heartened by this decision,” a spokesperson for the Seminole Tribe said.

In its petition, West Flagler raised “three questions of exceptional importance” it believed SCOTUS should ultimately decide. The questions were 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.

Justice Brett Kavanaugh Raises Concerns

Kavanaugh issued a separate statement on the stay denial after the ruling was made public. Kavanaugh noted in his statement that he respected the denial of the application, but had concerns regarding the gaming compact if it somehow authorized the Seminole Tribe to “conduct off-reservation gaming operations.”

“If the compact authorized the Tribe to conduct off-reservation gaming operations, either directly or by deeming off-reservation gaming operations to somehow be on-reservation, then the compact would likely violate the Indian Gaming Regulatory Act, as the District Court explained,” he said.

He noted that state law raises “serious equal protection issues” if the Seminole Tribe is the only organization allowed to conduct off-reservation gaming operations in Florida.

These issues are currently being addressed by the Florida Supreme Court in West Flagler’s lawsuit against Gov. Ron DeSantis (R).

“To the extent that a separate Florida statute (as distinct from the compact) authorizes the Seminole Tribe—and only the Seminole Tribe—to conduct certain off-reservation gaming operations in Florida, the state law raises serious equal protection issues,” Kavanaugh said.

SCOTUS Justice Brett Kavanaugh issued a statement on the denial of the stay. He doesn’t seem to be in favor of the compact legalizing Florida sports betting only for the Seminole Tribe. pic.twitter.com/Pu3QG96z3U

— RLinnehanXL (@RLinnehanXl) October 25, 2023

So What Now?

In its stay filing, West Flagler revealed it would be pursuing a writ of certiorari to hear the case with SCOTUS. The plaintiffs have a 90-day window, which began on Sept. 11, to pursue the writ by the Dec. 11 deadline.

There are two possibilities moving forward if West Flagler does pursue a writ of certiorari. One, SCOTUS decides to deny the writ of certiorari and does not take up West Flagler’s case, which would likely happen in early 2024 if that is the court of action the court takes.

The second possibility is SCOTUS grants West Flagler’s request and accepts the writ of certiorari to hear its case. A final decision on the case likely wouldn’t happen until 2025.

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