Florida Sports Betting Plaintiffs Take Major Blow

The plaintiffs behind the latest Florida sports betting lawsuit officially have their work cut out for them.

Protect the Constitution LLC filed a lawsuit earlier this year that, when you cut right to it, is aimed at trying to shut down online sports betting in Florida. The crux of their argument is that The Sunshine State’s 2021 gaming compact with the Seminole tribe does not allow for mobile wagering off-property, and that the current setup violates the agreement, because it did not receive a constitutional amendment via voter approval on an electoral ballot.

The state is naturally pushing back against these claims. Their primary counter: Florida sports betting is not the same as casino gambling. This means the gaming compact isn’t subject to the Article X, Section 30 that Protect the Constitution continues to cite.

More recently, though, the state is assuming an even stronger stance. As they seek dismissal of the lawsuit, they are now arguing that Protect the Constitution has no basis whatsoever for bringing about this motion.

This Argument Against the Florida Sports Betting Lawsuit is Pretty Convincing

Here is the most intriguing of The Sunshine State’s “threshold arguments” against Protect the Constitution (via Legal Sports Report’s Alan Wilmot):

Protect the Constitution lacks standing to raise its constitutional challenge as it has no business connection to Florida and is unable to claim harm in the state for itself or on behalf of its unidentified members

This is a pretty compelling argument. And it is one many legal experts assumed Florida would end up making. As gaming attorney Daniel Wallach highlighted when the lawsuit first dropped: “Plaintiff Protect the Constitution LLC is a Delaware limited liability company, which represents the interests of its members to advance lawful 'casino gambling' through petitioning activity, including by challenging unconstitutional 'casino gambling.’”

Geographical realities alone suggest this Florida sports betting lawsuit won’t have the same traction of its predecessor. When West Flagler Associates attempted to overturn Florida online sports betting, they had a cleaner path to claiming damages. After all, they are based in Miami and specialize in “gaming and track operations.” There is direct overlap between their business and the Seminole tribe offering sports betting.

To that end, if Protect the Constitution is filing a lawsuit under its own volition, it’s tough to see how they have a leg to stand. This implies they might be pushing this motion on behalf of a client or a third party. And that, in turn, raises the question of: Who is that client or third party? We will not pretend to have the answer. The lawsuit, as it stands, fails to note whether Protect the Constitution is representing any entity in Florida. That only lends further mystery to the matter.

There are More Layers to Florida’s Attempts to Dismiss this Sports Betting Lawsuit

If you think Protect the Constitution’s business interests and interpretation of sports betting are the only angles Florida is playing here, well, consider thinking again. As Wilmot notes, The Sunshine State is playing up these points as well:

The 2021 Gaming Compact states ‘wagers on Sports Betting…made by players physically located within the State using a mobile or other electronic device shall be deemed to take place exclusively where received at the location of the servers or other devices used to conduct such wagering activity at a Facility on Indian Lands.’ Therefore, even if a user were to place a mobile wager off-tribal land, the 2021 Gaming Compact establishes that such a transaction is actually occurring exclusively on tribal lands, defeating the basis of plaintiff’s complaint.

Protect the Constitution has failed to join the Seminole Tribe as an indispensable party, and is unable to do so because the tribe has not waived sovereign immunity.

Many will remember seeing some variation of the first bullet point before. This is the basis of how Florida sports betting survived the lawsuit against West Flagler Associates.

Indeed, the gaming compact does not explicitly allow sports betting off tribal property. However, the Seminoles claim that because the servers operating their Florida sports betting app are on tribal grounds, the mobile wagering site itself is an extension of their property.

The Florida Supreme Court is inclined to agree. Now, the Supreme Court of the United States (SCOTUS) never officially weighed in. But that’s also a vote in favor of the Seminole Tribe. SCOTUS’ decision not to hear the previous case from West Flagler Associates is an endorsement of the current interpretation by default.

Will the Florida Sports Lawsuit be Dismissed?

As we have covered in this space before, it’s much too early to answer this question. The arguments the state of Florida lays out are no doubt strong. But they are all part of a preliminary process.

In truth, the state probably isn’t expecting the case to get thrown out. As many legal experts have explained, these rebukes to Protect the Constitution’s lawsuit are more about finding out how seriously the courts take the plaintiffs’ claims. The response Florida receives will allow them to craft their defense accordingly.

Still, as online sports betting in the United States becomes more and more mainstream, it’s difficult to see this lawsuit gaining much traction. Sure, the industry remains divisive. It’s also flawed. But overturning Florida sports betting is officially an uphill battle. The first legal saga set a precedent. And that precedent will be hard to negate.

It doesn’t help matters that a Delaware-based company is bringing the lawsuit. This entire thing seems as if it would carry more weight if a Florida operator were involved. And look, perhaps they are. Without knowing for sure, though, it feels like we’ll look back on this as a footnote—not a turning point.

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