Official magazine of the International Masters of Gaming Law
MALTA MARKET FOCUS
INTERNATIONAL MASTERS of GAMING LAW MAGAZINE
VOLUME 3 | STUDENT SPECIAL | JUNE 2023
BAD BEAT: FLORIDA SPORTS BETTING & THE EROSION OF FUNDAMENTAL PRINCIPLES UNDERLYING INDIAN GAMING LAW
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IMGL MAGAZINE | JANUARY 2023
EDITORIAL
Rigor and relevance
With the launch of the IMGL Magazine at the start of 2021, we started a new publishing endeavor. IMGL wanted to go online and broaden the geographic scope of the authors and the spread of the readership. This was to ensure that all continents were covered to duly represent the expertise of the global IMGL membership base and the global perspective of the gaming industry. Having been trusted with the editorial responsibility by former presidents Ellinger and Nettleton, I prioritized, from the outset, a high bar regarding the quality of the articles in our new flagship publication. Accordingly, new guidelines for contributors were composed to ensure articles were of high standard and followed common rules. A high threshold of authorship, informed by scholarly best practices, that should ensure both rigour and relevance. Rigour in the way manuscripts are drafted, reviewed and finally published. Relevance in terms of the focus taken in the manuscripts and bearing in mind our readership during the editorial review. From issue one of volume one of the new IMGL Magazine, I have been a strong supporter of student submissions on gaming law to our magazine. The finest of these student submissions are carefully drafted and integrate case law and scholarly literature. Upon moderation by their supervisors and / or our
editorial review, they result in fine articles providing value to our readers. In this context, I would like to thank all members of our IMGL Education Committee led by Professor Kathryn Rand. Members of the committee have worked with their students to submit their theses, papers and other coursework. To date we have received almost 30 such submissions on a vast range of subjects. Each submission was the result of many hours of research into academic literature and caselaw, and of collaboration with lecturers. This is the kind of time dedication and relentless rigour that busy legal practitioners struggle with amid the rough and tumble of client meetings and constant pressure to meet deadlines. The result has been a series of articles published in the IMGL Magazine which genuinely add to the sum of our knowledge of gaming law. With former president Marc Ellinger having inaugurated the new IMGL Student Competition, it was clear that we would want to showcase the efforts taken by the finalists. The latter were invited to present their work at the IMGL Conference in Napa. The winning article is being published in this very first special issue of the IMGL Magazine. I cordially congratulate our first winner, Ms Jacqueline Vokoun, for this scholarly achievement and the exposure gained among our prominent readership.
SIMON PLANZER PHD, Editor in Chief IMGL MAGAZINE
IMGL Magazine is owned, published and distributed by: The International Masters of Gaming Law PO Box 27106, Las Vegas, NV 89126 USA The IMGL is a domestic non-profit corporation registered in Nevada, U.S. with registration number NV20121147120 Editor in Chief: Simon Planzer PhD, planzer@planzer-law.com Publication & Marketing Committee: Co-chairs , Stephanie Bell and Simon Planzer Members : Henrik Hoffmann, Kok-Keng Lau, Christine Masse, Peter Kulick, Anna Soilleux-Mills, Veronique dos Reis Impresum
IMGL MAGAZINE | JANUARY 2023 IMGL MAGAZINE | APRIL 2023
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EDITORIAL
Her article centering around the landmark ruling in West Flagler Associates v. Haaland, involving a compact between the Seminole tribe and the State of Florida, excels in the same ways that we are trying to uphold with the IMGL Magazine. It features “law in context”. Contextualising the case in the historical development and the present-day US remote gaming markets, the author illustrates the relevance of the ruling and provides added value to her legal analysis, both on procedural aspects and on merits. Ms Vokoun has set the bar for future submissions to the IMGL Student Competition and we are looking forward to reading the next winner’s contribution. Rigour and relevance is what we pursue in the IMGL Student Competition and the IMGL Magazine alike. And I would like to cordially thank everybody who has joined that mission and notably contributed their valuable time to the successful first IMGL Student Competition. With grateful thanks to Kathryn Rand for her leadership of the IMGL Education Committee and to committee members for the time spent reviewing each of the submissions received. Professor Rand has kindly chosen to write on the competition itself within this special issue. Thanks go also to IMGL Vice President Marc Dunbar who led the final review by practitioners and selected our three finalists. Finally, thanks go to our Head of Publications and European Affairs Phil Savage who has provided great support in implementing this first IMGL Student Competition. Yours sincerely, Simon planzer@planzer-law.com
VOLUME 2 • NO.1 JANUARY 2022 IMGL magazine
PLUS: UKRAINE AND BRAZIL MARKET REPORTS, DIGITAL ID IN EUROPE, CHANNELIZATION AROUND THE WORLD, APPLE’S CASINO APPS ...AND MUCH MORE TAX TALK: SPECIAL FEATURE
IMGL Magazine • January 2022 • 1
Click the covers to catch up on past editions and search our archive of gaming law articles at www.IMGL.org/publications
Head of Publications: Phil Savage phil@IMGL.org Design and production: SportBusiness Communications.
Copyright: All rights reserved to IMGL. No part of this publication may be reproduced or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without prior permission from the publisher. The articles expressed in this publication do not necessarily reflect the views of IMGL but those of the authors. The publisher and editor do not accept any liability for the contents of the authors’ contributions.
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IMGL MAGAZINE | JANUARY 2023 IMGL MAGAZINE | APRIL 2023
GAMING LAW EDUCATION
New IMGL Student Competition Invests in Gaming Education, Inspires Next Generation of Gaming Law Professionals
G aming law is a growing area of legal practice. With the advent of mobile and online wagering, coupled with the rapid legalization of sports betting in the U.S. and the continued expansion of regulated gaming worldwide, knowledgeable and skilled attorneys with expertise in gaming law and related areas are increasingly in demand. Gaming attorneys advise and advocate for clients in business, government, and litigation in all aspects of the industry, from acquisition and development, to compliance and licensure, to technology and tribal matters, and beyond. Regardless of specialization, more and more attorneys encounter any number of gaming-related or adjacent issues that require conversance in gaming law and regulation. Multi-faceted and often multi-jurisdictional, gaming law is a dynamic and challenging area of practice. The International Masters of Gaming Law, a global organization of the world’s leading gambling law and regulation experts,
has long been known for providing excellent executive-level education relevant to the most pressing legal issues facing the gaming industry. Through its Educator Members, the IMGL has been a staunch supporter of gaming-related courses and programs at law schools and universities to inspire and encourage the next generations of gaming attorneys and other professionals in the field. As gaming education, development, and professional networking also take place outside the classroom, IMGL’s many conferences and events create venues for these opportunities to occur. This year, the IMGL launched an exciting new competition for students who are interested in pursuing a professional career in gaming. Envisioned by past IMGL President Marc Ellinger and implemented with the assistance of the Education Committee, the new IMGL Student Competition is designed to highlight and encourage the most promising students in the gaming field, as well as to recognize and support the work of
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GAMING LAW EDUCATION
Olivia Rothe , a law student at UNLV Boyd School of Law, for her paper titled, “Surviving a Negative Ruling for Tribes Under Brackeen v. Haaland: Why IGRA Is Distinct Enough to Pass Constitutional Muster” Jacqueline Vokoun , a recent graduate of UNLV Boyd School of Law, for her paper titled, “Bad Beat: Florida Sports Betting and the Erosion of Fundamental Principles Underlying Indian Gaming Law” Three of the student finalists, Bepko, Neal, and Vokoun, were able to attend the IMGL spring conference in Napa in April 2023, along with the instructors (all IMGL Educator Members) who nominated their papers. During a special panel session on the last day of the conference, each student gave a short presentation on their paper topic to a packed room at the conference venue. The students’ presentations were polished and professional, and well received by the experts in the audience; indeed, many attendees shared their enthusiasm over both the quality of the students’ presentation skills and the relevance of the subject matter. Following the panel, students networked with several conference attendees, while audience members cast their ballots for the best presentation. A few hours later at the luncheon, IMGL President Quirino Mancini praised all of the student competition participants before proudly announcing Jacqueline Vokoun as the “Best Paper” winner, and Victoria Neal as the “Best Presentation” winner, to a resounding round of applause. By any measure, the inaugural IMGL Student Competition was a success. By investing in students who show great promise for future careers in gaming law, and spotlighting the importance of academic courses and programs in the field of gaming education, the IMGL continues to be at the forefront of gambling law and regulation worldwide, both now and for generations to come.
some of the most impactful academic programs and faculty in gaming law, regulation, and policy. The competition design valued both scholarly rigor and practical impact of original student work. Faculty at any university or law school offering a gaming course or program were invited to nominate high-quality student-written papers on topics directly related to gaming law, gaming regulation, or gaming policy. From the student paper submissions, the IMGL Education Committee selected a handful of finalists, based on the quality of writing and research, as well as the value of the paper’s contribution to gaming law practitioners, gaming regulators, and gaming policymakers. From the finalists’ papers, a “Best Paper” winner was chosen by an ad hoc committee appointed by the IMGL President. Additionally, and most novel and exciting for student authors and IMGL members alike, each finalist was invited to attend the IMGL North American spring conference, held this year in Napa, California, and to give a short presentation on their paper topic. A “Best Presentation” winner was selected from the student presenters, based on the votes of the IMGL members in attendance at the conference. Each award carried a cash prize, as well as other recognition through the IMGL’s publications and website. In this inaugural year of the IMGL Student Competition, four finalists were selected by the Education Committee: Aubrey Bepko , a law student at UNLV Boyd School of Law, for her paper titled, “The Tribal Gaming Race Against the Mobile Sports Wagering Floodgates: Utilizing Tribal- Commercial Partnerships to Enter the Market” Victoria Neal , a law student at the University of Mississippi School of Law, for her paper titled, “Should Free Play Be Free From Taxation? The Free Play Tax Debate in the Sports Betting Industry”
STEVEN A. LIGHT IMGL Educator Member & Vice Chair, IMGL Education Committee
KATHRYN R.L. RAND IMGL Vice President & Chair, IMGL Education Committee
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TRIBAL GAMING IN FLORIDA
BAD BEAT: FLORIDA SPORTS BETTING AND THE EROSION OF FUNDAMENTAL PRINCIPLES UNDERLYING INDIAN GAMING LAW
JACQULINE VOLKOUN ARGUES THAT THE SEMINOLE TRIBE HAS BEEN LET DOWN IN FLORIDA WITH RAMIFICATIONS FOR TRIBAL COMPACTS ELSEWHERE
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TRIBAL GAMING IN FLORIDA
I. Introduction Since the Supreme Court overturned the Professional and Amateur Sports Protection Act in 2018, 1 legal sports wagering has expanded across the country at an explosive rate. 2 Sports betting is now legal on the books in 36 states and actively operating in 30 of those plus the District of Colombia. 3 Legalized betting has proven to be a profitable venture for governments: states with sports wagering operations have aggregated over one billion dollars in tax revenue since PASPA was ruled unconstitutional. 4 Tribal governments have also made moves to cash in on this rapid expansion of gambling. Tribes in seventeen states offer some form of sports wagering. 5 For sports bettors, the opportunity to participate in legal gaming has expanded in more ways than just geographical. Twenty states and the District of Columbia currently allow online or mobile sports wagering within their geographic boundaries. 6 Mobile or online platforms have become the overwhelmingly preferred method of sports betting. 7 Tribes can become participants in the mobile sports wagering market essentially through two avenues. First, tribes can obtain a license through a state’s general regulatory system and offer a mobile wagering product statewide. 8 For example, in Arizona tribes have been granted licenses by the states
to operate mobile sports wagering throughout Arizona. 9 Alternatively, tribes can offer mobile wagering pursuant to a tribal-state compact under the Indian Gaming Regulatory Act of 1988 (“IGRA”), as done by tribes in Washington. 10 In such cases, mobile wagering is typically only available in the tribe’s casino or within the boundaries of the tribe’s land. 11 This traditional sorting of tribal mobile wagering became muddied by the new compact negotiated between the Seminole Tribe and the state of Florida in 2021. 12 The compact granted the Seminole Tribe the exclusive right to operate mobile sports wagering throughout the state whether or not patrons were physically on tribal land at the time they placed their bets. 13 In November of 2021, a federal judge ruled the compact legally invalid in West Flagler Associates v. Haaland . 14 The next two sections give historical background on the development of tribal gaming law as it relates to the West Flagler case. II. The Indian Gaming Regulatory Act of 1998 Under federal law, tribes are generally viewed as sovereign and independent entities, whose sovereignty is paradoxically subject to limitations imposed by Congress. 15 Stemming from a series of early Supreme Court cases, federal law has developed
1 Murphy v. NCAA, 138 S. CT. 1461 (2018). 2 Timothy L. O’Brien, The Sports Gambling Gold Rush Is Absolutely Off the Charts , BLOOMBERG (Dec. 16, 2021), https://www.bloomberg. com/graphics/2021-opinion-online-sports-betting-future-of-american-gambling/ 3 Interactive Map: Sports Betting in the US , AM. GAMING ASSO’C, https://www.americangaming.org/research/state- gaming-map/. 4 US Sports Betting Revenue and Handle , LEGAL SPORTS REP., https://www.legalsportsreport.com/sports- betting/revenue/. 5 Tribal Sports Betting , INT. CENTER FOR GAMING REG., https://www.unlv.edu/icgr/tribal. 6 Robert Dellafave, Legal US Sports Betting , USBETS, https://www.usbets.com/sports-betting/. Two of these states, Nevada and Illinois, require patrons to sign up for a mobile wagering account in person. 7 O’Brien, supra note 2. 8 Kolby KickingWoman, Sports Betting: The new, shiny toy , INDIAN COUNTRY TODAY, https://indiancountrytoday.com/news/sports-bet - ting-the-new-shiny-toy. 9 Id. 10 Jim Tomlin, Mobile Sports Betting Launches Inside Washington State Tribal Casino , TOP US CASINOS, https://www.topuscasinos.com/ news/mobile-sports-betting-launches-inside-washington-state-tribal-casino. 11 Id . 12 John Holden, Tribal Sports Betting Storylines to Watch , LEGAL SPORTS REPORT, https://www.legalsportsreport.com/61604/tribal-sports- betting-storyline-to-watch-2022/. 13 Id . 14 W. Flagler Assocs. v. Haaland, No. 21-CV-2192 (DLF), 2021 WL 5492996, at *12 (D.D.C. Nov. 22, 2021) [hereinafter West Flagler ]. 15 KATHRYN R.L. RAND & STEVEN ANDREW LIGHT, INDIAN GAMING AND TRIBAL SOVEREIGNTY: THE CASINO COMPROMISE (2005), 26.
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around the idea that tribes are “domestic dependent nations” to whom the federal government owes a duty of protection. 16 These cases, known as the Marshall Trilogy , 17 established a trust relationship between tribes and the federal government, and guaranteed the tribes protection from interference by state governments as an extension of inherent tribal sovereignty. 18 In the wake of a 1987 Supreme Court ruling 19 , states and tribes were locked in a proverbial tug-of-war over who would get the power to regulate gaming activity on tribal lands. 20 Tribes saw the development of gaming as a way to preserve tribal sovereignty and protect gambling as a promising mode of economic development for tribal governments. 21 The tribes lobbied Congress to prevent state regulation of gaming on tribal lands. 22 Tribes preferred federal regulation to the imposition of state laws on their lands. 23 States wanted to both prevent organized crime and unfair competition with commercial and charitable gaming. 24 Congress managed to balance these competing interests by separating gaming into multiple classes under IGRA. 25 For Class III “casino-style” gambling, Congress created a middle ground for the competing governments in the form of tribal- state compacts. 26 Under these compacts, the two governments negotiate and create a regulatory structure for casino-style gaming on the tribe’s land. 27 Tribes could pursue Class III gaming activities by bringing the state government to the negotiating table, and states in turn could have a say in the
regulation of gaming on tribal lands within their borders. 28 Class III gaming compacts apply to all gaming activities not covered by Classes I and II, including sports wagering. 29 The Class III negotiation process also involves the federal government. 30 Under IGRA, the Department of the Interior reviews all tribal-state compacts and must give approval before a compact can go into effect. 31 As written into the statute, there are three reasons for a compact to be disapproved by the Interior Secretary. 32 A compact cannot be approved if it violates the federal trust relationship with tribes, violates any provisions of IGRA, or, if it violates other federal law. 33 The Department of the Interior has 45 days to approve or deny a compact, after which time the compact is deemed approved, “to the extent the compact is consistent with the provisions of [IGRA].” 34 Anticipating this potential veto, parties must be mindful when drafting compact provisions to either avoid invalidation by the federal government, or create contingencies for more questionable aspects. Congress carefully wrote IGRA’s policy goals into the statute. 35 In addition to establishing federal authority over tribal gaming, Congress also acknowledged the federal government’s persisting duties and the future possibilities implicated by tribal gaming enterprises. 36 Congress codified its belief that gaming could serve as means for promoting strong tribal governments, economic development, and self-sufficiency. 37 To protect these goals, Congress sought to ensure that tribal gaming was free from organized crime and that tribes were
16 Id . at 19. 17 Id .; Johnson v. M’Intosh, 21 U.S. 543 (1823); Cherokee Nation v. Georgia, 30 U.S. 1 (1831); and Worcester v. Georgia, 31 U.S. 515 (1832). 18 U.S. Comm’n on Civil Rights, A Quiet Crisis: Federal Funding and Unmet Needs in Indian Country 2 (2003). 19 California v. Cabazon Band of Mission Indians, 480 U.S. 202, 212 (1987). 20 RAND & LIGHT, supra note 15 at 42.
21 Id . 22 Id . 23 Id . 24 Id . 25 Id . at 45 26 Id . at 45-46
27 Id . 28 Id . 29 25 CFR 502.4(c) (“Class III Gaming means. . . [a]ny sports betting. ”) 30 John Tahsuda, Doubling Down on Indian Gaming: Examining New Issues and Opportunities for Success in the Next 30 Years , https://www. doi.gov/ocl/indian-gaming-1. 31 Id . 32 RAND & LIGHT, supra note 15 at 48. 33 Id .
34 25 U.S.C. § 2710(d)(8)(C). 35 25 U.S.C. §§ 2702(1)-(3). 36 Id . 37 § 2702(1).
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A. The Seminole Tribe’s long road to a Class III Compact Despite the long history of operating high stakes bingo halls on its reservation, the Seminole Tribe failed to negotiate and fully implement a Class III gaming compact until 2010 – twenty-two years after the passage of IGRA. 46 On the path to that compact, the Seminole Tribe had to overcome political and legal hurdles across multiple levels and branches of government. The careful balance struck under IGRA included a requirement that the states negotiate compacts “in good faith” with tribes seeking to operate Class III gaming. 47 Tribes were given a specific cause of action under IGRA to sue states in federal court for failing to negotiate in good faith as required. 48 In 1991, the Seminole Tribe wrote a letter to the Governor of Florida formally requesting to negotiate a Class III gaming compact. 49 The state’s initial response was positive, and negotiations between the two parties ensued between March and September of 1991. 50 However, the Tribe and the state disagreed about both the meaning of IGRA and the meaning of state law. 51 As a result, negotiations broke down and in September 1991, the Seminole Tribe filed suit against Florida for failure to negotiate in good faith as required by IGRA. 52 The state of Florida followed several other states’ examples and chose to assert its immunity from suit under the Eleventh Amendment of the U.S. Constitution. 53 Finally on appeal in 1996, the Supreme Court ruled that the Eleventh Amendment barred suit against any of the states, and thus the carefully balanced compromise meant to bring states to the negotiating table under IGRA was invalidated. 54 Following this defeat, the Seminole Tribe sought multiple
the primary beneficiary of any gaming establishments. 38 The statute further emphasized its foundation on fundamentals of federal-tribal relations by specifying that the Secretary of the Interior could disapprove a compact if it violated the United States’ trust obligations to the tribe. 39 III. Indian gaming and the Seminole tribe The Seminole Tribe has a long history of pursuing gaming activities in the state of Florida. 40 The tribe’s involvement in legal developments related to tribal gaming, both before and after the passage of IGRA, led some commentators to speculate that this tribe has played the biggest role in the growth of Indian gaming in the United States. 41 The Seminole Tribe was the first to open a high stakes bingo hall in 1979 and helped develop the legal theory that gave other tribes across the country that option in the Seminole Tribe of Florida v. Butterworth case. 42 The Supreme Court relied directly upon the reasoning in Butterworth when it decided the 1987 case that served as the catalyst for IGRA. 43 The Seminoles were also the key litigant in Seminole Tribe v. Florida , which effectively pulled the rug out from under some of IGRA’s key provisions and undermined tribal bargaining power for Class III gaming compacts. 44 The mobile wagering sections of the 2021 Compact between the Seminole Tribe and the state of Florida continues the Tribe’s legacy as the catalyst for legal developments in tribal gaming. 45 This section explores the history of the Seminole Tribe’s gaming operations under IGRA, including the development and enactment of the 2021 Compact at issue in the West Flagler Associates case.
38 §§ 2702(1)-(3). 39 § 2710(d)(8)(B)(iii). 40 Matthew L.M. Fletcher, The Seminole Tribe and the Origins of Indian Gaming , 9 FIU L. Rev. 255, 255 (2014). 41 Id. 42 Seminole Tribe of Florida v. Butterworth, 658 F.2d 310 (1981). 43 California v. Cabazon Band of Mission Indians, 480 U.S. 202, 212 (1987) (“This view, adopted. . .by the Fifth Circuit in the Butterworth case, we find persuasive.”). 44 Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996). 45 West Flagler at *12. 46 Fletcher, supra note 39 at 273. 47 25 U.S.C. § 2710(d)(3)(A). 48 Id . 49 Vicki C. Jackson & Judith Resnik, Sovereignties-Federal, State, and Tribal: The Story of Seminole Tribe of Florida v. Florida , in FEDERAL COURT STORIES 344 (Vicki C. Jackson & Judith Resnik eds., 2010)
50 Id . 51 Id . 52 Id . 53 Id . at 346 54 Seminole Tribe of Florida v. Florida, 571 U.S. 44.
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avenues to secure Class III gaming on its reservation land, and eventually exerted enough political pressure to bring Florida back to the negotiation table. 55 In 2007, the Tribe reached an agreement with Governor Crist giving the Tribe the ability to operate Class III gaming which was subsequently approved by the Secretary of the Interior. 56 The Florida Supreme Court encapsulated the Tribe’s relentless efforts to operate Class III gaming by describing the 2007 Compact as the result of “almost sixteen years of sporadic negotiation with four governors.” 57 However, the state’s House of Representatives disputed Governor Crist’s ability to enter into a binding agreement with the Tribe and refused to validate the negotiated compact. 58 The Speaker of Florida’s House of Representatives filed suit and the Florida Supreme Court confirmed that Governor Crist lacked the constitutional authority to enter into the compact. 59 Despite this ruling on the compact’s validity, the Seminole Tribe continued to offer the games negotiated under the compact as approved by the Secretary of the Interior. 60 With the prospect of missing out on revenue generated under the unstable compact, the Florida Legislature granted Governor Crist the authority to negotiate a compact on the state’s behalf but required that any deal be ratified by the legislature. 61 A deal was struck with the governor, ratified by the legislature, and approved by the Department of the Interior in 2010. 62 Under the 2010 Compact, the Seminole Tribe was given exclusive rights to operate house- banked card games, such as blackjack and baccarat, and nearly exclusive rights to operate slot machines within the state. 63 In return, the state was guaranteed a minimum of $1 billion in revenue over the
first five years of the compact, and up to a fifteen percent share of profits exceeding $2 billion. 64 B. Revenue sharing and the catalyst for a new compact The 2010 Compact had a fixed term of a total of twenty years. However, house-banked card games, like blackjack, were authorized only for the first five years of the Compact term, but only if Florida did not permit anyone other than the Tribe to offer such games. 65 The intention was to give the Tribe the ability to offer banked card games without having to compete with commercial card rooms. 66 When the five-year period ended, the Tribe continued to offer its house-banked games and claimed that it had the authority to do so for the 2010 Compact’s entire twenty-year term. 67 According to the Seminole Tribe and the Federal District Court, the exception to the five year limitation on blackjack was triggered because Florida had allowed cardrooms to offer player-banked and video card games. 68 By allowing cardrooms to offer games that operated similarly to blackjack, the state had violated the exclusivity promise under the Compact, and thus the Seminole Tribe could continue to offer blackjack tables for the entire duration of the twenty-year compact without sharing any revenue with the state.69 69 Florida appealed the District Court’s decision, but ultimately reached a settlement with the Seminole Tribe which restored revenue sharing between the Tribe and State in 2017. 70 The state would receive $220 million immediately, and continued revenue sharing, while the Tribe was guaranteed the ability to offer blackjack at its casinos. As part of the settlement, Florida also agreed to take “aggressive enforcement action” against
55 Fletcher, supra note 39 at 272. 56 Id . 57 Fla. House of Representatives v. Crist, 999 So. 2d 601, 603 (Fla. 2008)
58 Id . 59 Id . 60 Allison Sirica, A Great Gamble: Why Compromise Is the Best Bet to Resolve Florida’s Indian Gaming Crisis , 61 Fla. L. Rev. 1201, 1204 (2009). 61 Id . at 1222. 62 Press Release, US Dept. of the Interior, Class III Gaming Compact Approved for Seminole Tribe of Florida , https://www.bia.gov/as-ia/opa/ online-press-release/class-iii-gaming-compact-approved-seminole-tribe-florida 63 Devin O’Connor, Odds Long Seminoles and Florida Resolve Gaming Compact Before 2020 Session Ends, CASINO.ORG, casino.org/news/ odds-long-seminole-tribe-and-florida-resolve-gaming-compact-dispute/. 64 Fletcher, supra note 38 at 273. 65 Seminole Tribe, 219 F. Supp. 3d 1177, 1180 (N.D. Fla. 2016). 66 Id . at 1182. 67 Id . at 1182-3. 68 Id . at 1180. 69 Id . 70 Gary Fineout, Florida and Seminoles settle blackjack dispute , ORLANDO SENTINEL, https://www.orlandosentinel.com/politics/os-seminole- tribe-rick-scott-20170705-story.html.
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the cardrooms at issue in the suit. 71 The Tribe, however, was not satisfied with Florida’s efforts to uphold its end of the bargain. 72 A lawyer for the Tribe indicated that it was the Tribe’s belief that the promised “aggressive” enforcement did not occur. 73 In the Tribe’s view, not only had the state failed to take the promised enforcement action, but it also had allowed the prevalence of the illegal games to expand. 74 In response to this perceived failure to uphold the deal, the Tribe’s Chairman hand- delivered a letter to Governor DeSantis in May of 2019 informing him that the Tribe would “suspend its revenue share payments until the illegal banked card game issue is resolved.”75 75 The state and tribe continued to negotiate a new compact over multiple legislative sessions, and it took two years for the parties to come to a resolution. 76 In April of 2021, Governor DeSantis announced that a new agreement had finally been struck between the Seminole Tribe and the state of Florida. 77 Because the deal was reached with only a week left in the legislative session, the state held a special session with the primary purpose of reviewing and ratifying the new compact agreement. 78 On May 18, 2021, the special session passed Senate Bill 2-A and formally ratified the 2021 Tribal-State Compact with the Seminole Tribe (“2021 Compact”). 79 C. The Seminole tribe Compact of 2021 After the long negotiations, the Seminole Tribe and Florida agreed to another 30-year gaming compact under IGRA. Under
the 2021 Compact, the Tribe was given continued exclusivity over banked card games and continued authorization to offer slot machines. 80 In addition, the Tribe was permitted to expand the number and types of table games offered at its casinos, such as craps and roulette, and add up to three new casino facilities within its reservations. 81 The 2021 Compact also included a severability provision, which stated that if a Court found any provision of the Compact invalid, all other provisions and subsections would remain in effect. 82 Most importantly, the 2021 Compact included a landmark provision that once again put the Seminole Tribe in a position to pioneer developments in tribal gaming law. In addition to physical sports books on casino floors, the 2021 Compact gave the Seminole Tribe the exclusive right to conduct mobile sports wagering and daily fantasy sports contests. 83 Under the Compact, the Seminole Tribe had the ability to accept wagers from mobile devices made by anyone located physically within the state of Florida. 84 While other state compacts allowed tribes to conduct mobile sports betting, the person placing the wager was required to be physically present on tribal land at the time. 85 The ability to accept wagers from patrons throughout the entire state set the 2021 Compact apart from predecessors. IGRA authorizes tribal-state compacts for the conduct of Class III gaming “on Indian lands,” 86 defined under the statute as either reservation land or land held in trust by the United States for the benefit of the tribe. 87 The 2021 Compact did not
71 Id . 72 Marcellus Osceola, Jr., Chairman of the Seminole Tribe of Florida, Letter to Ron DeSantis, Governor of Florida (May 14, 2019). 73 Phillip Conneller, Seminoles End $350 Million Annual Casino Revenue-Share Payments to State of Florida , CASINO.ORG (May 15, 2019), https://www.casino.org/news/seminoles-end-350-million-revenue-share-payments-to- state-of-florida/. 74 Osceola, supra note 71. 75 Id . 76 Matt Rybaltowski, Sports Betting Talks With Seminoles Heat Up , SPORTS HANDLE https://sportshandle.com/florida-seminoles-sports-bet - ting/. 77 Memorandum from Wilton Simpson to Senators, https://www.flsenate.gov/PublishedContent/Offices/2020- 2022/President/Docu - ments/4_23_21_2021_Gaming_Compact.pdf 78 Id . 79 Press Release, Florida Senate President Office, Florida Senate Ratifies Historic Compact with Seminole Tribe (May 18, 2021), https://www. flsenate.gov/Media/PressRelease/Show/3979 80 Bill Summary, Senate Appropriations Committee, CS/SB 2-A: Implementation of the 2021 Gaming Compact Between the Seminole Tribe of Florida and the State of Florida, https://www.flsenate.gov/Committees/BillSummaries/2021A/html/2593. 81 Id . 82 2021 Compact Between the Seminole Tribe of Florida and the State of Florida, 66, https://www.flgov.com/wp- content/uploads/pdfs/2021%20 Gaming%20Compact.pdf [hereinafter “2021 Compact”].
83 Id . 84 Id . 85 See Tomlin, supra note 10. 86 25 U.S.C. § 2710 (d). 87 § 2703(4).
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disregard this definition of “Indian lands,” but further defined where exactly a wager takes place. 88 Mobile wagers were deemed by the Compact to be conducted “where the servers or other devices used to conduct such wagering activity” are located. 89 In other words, as long as the servers that accepted and processed the wagers were located on the Seminole Tribe’s land, the wager itself was deemed to take place there. On August 6, 2021, the Interior Secretary issued a letter effectively approving and analyzing the key provisions of the 2021 Compact. 90 IGRA gives the Interior Department forty- five days to approve or deny a tribal-state gaming compact; if the Interior Department takes no action, the compact is deemed approved insofar as it is consistent with the provisions of IGRA. 91 The Interior Secretary took no action on the 2021 Compact submitted by the Seminole Tribe before the forty- five day deadline, and thus it received a “pocket approval.” 92 However, the letter further analyzed the 2021 Compact, stating “it is important that the Department address the provisions relating to internet gaming activities.” 93 Though the Department of the Interior took issue with some provisions of the 2021 Compact, such as the allocation of jurisdiction over tort claims and mandatory vendor contracts, its analysis of the mobile sports betting provisions were generally favorable. 94 Describing the mobile wagering setup as a “hub and spoke model” where the servers act as a hub and each mobile device acts as a connected spoke, the Department determined that the Tribe should have the ability to engage in this type of gaming as long as the patron placing the wager was not located on another tribe’s land. 95 In reaching this finding, the Department noted that IGRA was intended to be a
flexible statute and that evolving technology should not be an impediment to tribal gaming pursuits. 96 Approved by the tribe, state governor, state legislature, and federal government, the 2021 Compact went into effect in August of 2021. As with all other compacts entered into by the Seminole Tribe, the 2021 Compact was an immediate target for litigation. 97 Opponents of the 2021 Compact began challenging it in federal court before the Interior Secretary had even responded to it. 98 IV. Tribal gaming in Florida goes back to court: West Flagler Associates v. Haaland The legal opposition to the 2021 Compact was led primarily by commercial parimutuel and casino operators and a nonprofit advocacy and lobbying organization opposed to the expansion of any gaming in Florida. 99 In July of 2021, the commonly controlled companies of West Flagler Associates, Ltd., and Bonita-Fort Meyers Corporation filed suit against Governor DeSantis in the Federal District Court for the Northern District of Florida. 100 The two companies asserted their claims as Florida parimutuel operators of the Magic City Casino and Bonita Springs Poker Room respectively. 101 The sixty-seven page complaint sought declaratory judgment against the sports betting provisions and to enjoin Governor DeSantis from enacting the 2021 Compact under the Indian Gaming Regulatory Act, the Federal Wire Act, and the Unlawful Internet Gambling Enforcement Act
88 Bill Summary, supra note 79. 89 Id . 90 Bryan Newland, Principal Deputy Assistant Sec’y – Indian Affairs, Dep’t of the Interior, Letter to Marcellus Osceola, Jr., Chairman, Seminole Tribe of Florida (Aug. 6, 2021). 91 25 U.S.C. 2710(d)(8). 92 Newland, supra note 89. 93 Id . 94 Id . 95 Id . 96 Id . 97 W. Flagler Assocs. v. DeSantis, No. 4:21-cv-00270, 2021 WL 2774512 (N.D.Fla. Oct. 18, 2021). 98 Haley Brown, Casino operators argue off-site betting violates federal gambling regulation, https://floridapolitics.com/archives/439061-miami- casino-owner-sues-over-seminole-tribe-sports-betting-deal/. 99 Scott Powers, Suit challenges federal approval of Florida’s Gaming Compact, https://floridapolitics.com/archives/450913-magic-city-sues-in- federal-court-to-stop-gaming-compact/; No Casinos, CAUSEIQ, https://www.causeiq.com/organizations/no-casinos,371647915/ 100 Complaint at 1, W. Flagler Assocs. v. DeSantis, No. 4:21-cv-00270, 2021 WL 2774512 (N.D.Fla. Oct. 18, 2021). 101 Id . at 5 -7.
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A. The closed courthouse door: denial of the Seminole tribe’s motion to intervene Despite being the entity most impacted by the 2021 Compact, the Seminole Tribe was not included as a party to the West Flagler litigation. 112 The Seminole Tribe argued that its intervention as an indispensable party was the best way for the Tribe to both preserve “its sovereign immunity from suit and also ensure that litigation challenging [the 2021 Compact] does not proceed without it.” 113 To that end, the Seminole Tribe filed a Motion to Intervene with the sole and limited purpose of moving to dismiss the claims against the Department of the Interior and Secretary Haaland. 114 The Tribe’s fourteen-page motion included a three-part argument. 115 First, the Seminole Tribe argued that, as a means to protect sovereign immunity, limited intervention was the appropriate avenue for a tribe to file a motion to dismiss. 116 The Tribe cited several cases from the D.C. Circuit and D.C. District courts, including MGM Global Resorts Development, LLC v. U.S. Department of the Interior . 117 Like the West Flagler case, in MGM Global , a gaming operator asserted that the Secretary’s approval of two tribes’ compacts under IGRA violated the APA.118 118 The MGM Global court found that the tribes had Article III standing to join the lawsuit and performed a four-factor analysis to determine if intervention was permissible under Federal Rule 24(a). 119 The MGM Global court determined that the tribes met all four prerequisites for intervention. 120 The court first determined
(“UIGEA”). 102 The State responded by pointing out that none of the three federal statutes create a private right of action and that the parimutuel operators lacked standing. 103 The Seminole Tribe also filed a motion to dismiss based on the parimutuel operators failure to join the tribe as an indispensable party to the litigation. 104 The court agreed with Florida that the operators lacked standing to pursue the case and dismissed it without addressing the Tribe’s status as an indispensable party of the merits of the claims. 105 A week after notice of the 2021 Compact was published in the Federal Register, the parimutuel operators filed a second simultaneous suit in D.C. District Court against the Department of the Interior and Interior Secretary Deb Haaland. 106 Shifting the focus of their argument, the parimutuel operators this time claimed that Secretary Haaland’s approval of the 2021 Compact with the mobile wagering provisions included therein violated the Administrative Procedures Act (the “APA”). 107 A month later, a group of individuals and businesses generally opposed to the expansion of gambling in Florida filed a similar suit challenging the 2021 Compact under the APA. 108 Both suits argued that the 2021 Compact was in contention with IGRA, UIGEA, and the Federal Wire Act. 109 Instead of relying on each statute as a cause of action, the parimutuel operators and gambling opponents used the arguments to show that approval of the 2021 Compact was “otherwise not in accordance with law,” and thus a violation of the APA. 110 Given the nature of the complaints, the court consolidated the cases and all parties proceeded against Secretary Haaland under the West Flagler case. 111 102 Id .
103 Defendant’s Motion to Dismiss at 2, W. Flagler Assocs. v. DeSantis, No. 4:21-cv-00270, 2021 WL 2774512 (N.D.Fla. Oct. 18, 2021). 104 Motion to Dismiss for Failure to Join an Indispensable Party at 1, W. Flagler Assocs. v. DeSantis, No. 4:21-cv- 00270, 2021 WL 2774512 (N.D. Fla. Oct. 18, 2021). 105 W. Flagler Assocs. v. DeSantis, No. 4:21-cv-00270, 2021 WL 2774512, at *3 (N.D.Fla. Oct. 18, 2021). 106 West Flagler at *12. 107 Complaint at 36, West Flagler . 108 Complaint at 4-8, Monterra MF, LLC v. Haaland, No. 1:21-cv-02513 (D.D.C. Sep 27, 2021). 109 Id .; Complaint at 36, West Flagler. 110 Complaint at 32-33, Monterra MF, LLC v. Haaland, No. 1:21-cv-02513 (D.D.C. Sep 27, 2021). 111 Minute Order (Oct. 4, 2021), West Flagler . 112 Motion to Intervene for a Limited Purpose at 1, West Flagler [hereinafter Motion to Intervene]. 113 Id . at 4 114 Id . 115 Id . 116 Id . at 4-5. 117 Id . 118 MGM Glob. Resorts Dev., LLC v. United States Dep’t of the Interio r, No. CV 19-2377 (RC), 2020 WL 5545496, at *1 (D.D.C. Sept. 16, 2020) 119 Id . at *4 -*5. 120 Id .
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that the tribes’ motion was filed in a timely manner and would not prejudice any parties. 121 The court further found that the tribes’ had a legally protected interest at stake in the litigation over the compacts and that a decision in the case could impede their ability to protect that interest. 122 Finally, the court turned to whether the existing parties would adequately represent the tribes’ interests. 123 Citing the Supreme Court and D.C. Circuit, the Court first determined that the inadequate representation requirement is not burdensome and can be met with a minimal showing. 124 The court noted that while the tribes and government may agree in broad terms, the government has an obligation to represent the American people and not the interests of the tribes. 125 In this instance, the tribes had an interest in the compact-authorized casinos that was not shared by the government. 126 Thus, the court determined all four factors were met. The gaming operator in MGM Global further opposed the tribes’ request to intervene on a limited basis. 127 In its view, Rule 24(a) requires a party to intervene fully in the case “or not at all.” 128 The court refused to adopt this interpretation of Rule 24(a), but noted that there was no binding precedent on the issue. 129 The court however pointed to a D.C. Circuit decision that allowed a party to intervene for the limited purpose of asserting and immunity defense, as well as several other cases from outside the D.C. Circuit where tribes were permitted to intervene for limited purposes. 130 Finding the gaming
operator’s procedural arguments unpersuasive, the MGM Global court granted the tribes’ motion to intervene for the limited purpose of seeking to dismiss the suit. 131 The Seminole Tribe’s motion addressed all of the prerequisites considered in MGM Global . 132 The Tribe argued that a decision invalidating the 2021 Compact would have practical and substantial economic impacts on the Tribe. 133 As such, according to the tribe, a decision in the case without the tribe’s involvement would “undeniably impair [its] ability to protect its interests.” 134 The tribe’s motion relied heavily on the court’s reasoning in MGM Global to argue that the Interior would not adequately represent its interests. 135 The Tribe also pointed to a court decision that determined tribes have a narrow financial interest in tribal gaming operations that the federal government does not share. 136 In the tribe’s view, only the tribe itself could adequately represent both its financial interests and its right to sovereign immunity from suit. 137 In response, both the parimutuel operators and the federal government opposed the tribe’s motion to intervene. 138 Described by the tribe as “putting the cart before the horse,” the parimutuel operators and federal government opposed the motion on the grounds that the merits of the tribe’s motion to dismiss would fail. 139 The government argued it is the only indispensable party to challenges of agency actions under the APA. 140 The parimutuel operators, however, made the conclusory argument that the Tribe’s basis for qualifying
121 Id . 122 Id . 123 Id . 124 Id . 125 Id . 126 Id. 127 Id . 128 Id . 129 Id . 130 Id . 131 Id . 132 Motion to Intervene, supra note 111. 133 Id . at 10.
134 Id . 135 Id .
136 Id at 12. 137 Id . at 13
138 Plaintiff’s Memorandum in Opposition to Motion to Intervene for Limited Purpose of Moving to Dismiss and Opposition to Motion to Dismiss, West Flagler ; Defendant’s Memorandum in Opposition to Motion to Intervene for Limited Purpose of Moving to Dismiss and Opposition to Mo- tion to Dismiss, West Flagler . 139 Seminole Tribe’s Response to Memorandum in Opposition to Motion to Intervene for Limited Purpose of Moving to Dismiss, West Flagler . 140 Plaintiff’s Memorandum in Opposition to Motion to Intervene for Limited Purpose of Moving to Dismiss and Opposition to Motion to Dismiss, West Flagler; Defendant’s Memorandum in Opposition to Motion to Intervene for Limited Purpose of Moving to Dismiss and Opposition to Motion to Dismiss, West Flagler .
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as an indispensable party relied on its interest in “a plainly unlawful” compact. 141 B. The adequacy of the federal government’s representation As pointed out by the tribe’s motion to intervene, the Interior Department’s performance in the litigation had the potential to substantially impact the tribe’s economic interests. Despite the possibility for heightened scrutiny of its performance, the government made several procedural missteps throughout the litigation. On September 15, 2021, the court granted the parties’ joint motion to set a briefing schedule. 142 The schedule set deadlines for the parimutuel operators to submit a motion for summary judgment and for the federal government to file a response. 143 The parimutuel operators submitted a motion for summary judgment on the scheduled deadline devoting the bulk of their argument to attempting to demonstrate that mobile wagers made pursuant to the 2021 Compact do not take place “on Indian lands” as required by IGRA. 144 The motion consistently reinforced the argument that the wagers took place wherever the patron was physically located, and not where the servers are located as “deemed” by the 2021 Compact. 145 In all, the gaming operators dedicated over thirty pages to an argument on the legal merits of the case. 146 In stark contrast, the government did not submit a response by the briefing schedule deadline. 147 In fact, the Interior Department did not respond to the motion for summary judgment until admonished by the court during the motion hearing on November 5, 2021. 148 The government instead focused all efforts on arguing that the case should be dismissed 141 Id . 142 Minute Order (Sep. 15, 2021), West Flagler . 143 Id . 144 Plaintiff’s Motion for Summary Judgment, West Flagler .
before the merits could ever be considered. 149 Despite the briefing schedule and the volume of pages devoted to arguing the mobile wagering provisions did not meet IGRA’s “on Indian lands” requirement, the government was unprepared to discuss the substantive merits of the case during the motion hearing. 150 In a minute order filed that same day, the court admonished the government for its “refusal, both in. . . briefing and at oral argument” to respond to the motion for summary judgment. 151 During the November motion hearing, the court directly asked the government to clarify its position on the “on Indian lands” issue at least ten times. 152 When asked specifically if the mobile wagering under the 2021 Compact all took place on tribal land, the government indicated it was not prepared to answer at that time. 153 The court gave the Interior Department four days to file an amended response that addressed the substantive merits, but that response still did not definitively answer the “on Indian lands” question. 154 C. The Final Order On November 22, 2021, the court issued the final order invalidating the entirety of the 2021 Compact and reverting the state and tribe to the 2010 Compact. 155 This stopped the Seminole Tribe not only from offering mobile wagering, but also physical sportsbooks on tribal lands, expanded casino games such as craps and roulette, and the option to build three new casinos. 156 In reaching its decision, the court also ruled the Seminole Tribe was not an indispensable party and denied its motion to intervene. 157 The court’s argument first addressed the standing claims brought by the government in its motions to dismiss. 158 The
145 Id . 146 Id . 147 Docket, West Flagler 148 Transcript of Motions Hearing before Judge Dabney L Friedrich (Nov. 5, 2021), West Flagler [hereinafter “Hearing Transcript”] .
149 Id . 150 Id 151 Minute Order (Nov. 5, 2021), West Flagler . 152 Hearing Transcript, supra note 147. 153 Id . 154 Defendant’s Amended Response to Motion for Summary Judgment, West Flagler . 155 West Flagler at *12. 156 2021 Compact, supra note 81. 157 West Flagler at *12. 158 Id . at *2.
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