Every weekend, we take a look at the news stories shaping the conversations in Florida’s business, policy and political worlds. Here’s this weekend’s Capitolist wrap-up, which we call “The Wrap.”
In the year 2051, we’ll have flying cars and still have a year left on the 2021 Seminole Compact
I’m no lawyer, but I know a lot of smart ones. Harvard Law types, constitutional law experts, and so forth. And most of them who have looked at the 2021 Seminole Gaming Compact all tell me the same thing, pointing out the same glaring flaw, or, rather, the same interlinked series of flaws that combine to make for a really fantastic deal for the Florida Seminole Tribe but a really lousy deal for other casino license holders and for Florida voters. What’s worse is that this flawed deal could still be in place three decades from now if lawmakers ratify the Compact next week.
That’s because the Compact’s “Achilles Heel” is that when (not if) this deal goes to court, it almost certainly won’t emerge intact. The opposition group No Casinos, one of the driving forces behind the 2018 constitutional amendment banning any expansion of gaming without direct approval by Florida voters, is vowing to defend the constitution by challenging the legality of the Compact. That means whether lawmakers like it or not, the judicial branch is going to have a major say in the ultimate composition of the Compact.
The Compact was intentionally structured so that when the courts ultimately do strike parts of it – almost certainly the obvious expansion of sports betting – what’s left of the deal, all of it benefiting only the Seminole Tribe, will remain in force.
Most lawyers – though not all – say the sports betting provisions in the Compact constitute an obvious expansion of gaming, and that any argument to the contrary simply doesn’t pass the “sniff test.”
Sure, Nova Southeastern University law professor Robert Jarvis told the Florida Phoenix this week that any lawsuit challenging the Compact has “zero chance” of success. That’s the sort of trash talk I like to hear, the sort of big, bold guarantee you normally get from an ESPN pundit. Who doesn’t love to see a guy push every poker chip he has to the center of the table and stake his reputation on a legal outcome he doesn’t control?
But Jarvis’s guarantee is centered around a key clause in the Florida Constitution that reads: “nothing herein shall be construed to limit the ability of the state or Native American tribes to negotiate gaming compacts pursuant to the Federal Indian Gaming Regulatory Act for the conduct of casino gambling on tribal lands.”
He says that language makes the 2018 Constitutional Amendment “irrelevant” in the case of the new Compact, and that basically the State of Florida and the Seminole Tribe can do whatever they want, so long as it’s on Tribal lands.
But other lawyers I’ve talked to and who seem at least as smart as Jarvis say that his reasoning puts the proverbial cart before the horse. The second half of the phrase Jarvis cited, the part that reads “pursuant to the Federal Indian Gaming Regulatory Act” is crucial, and Jarvis, as well as DeSantis and the Seminole Tribe, can’t simply ignore it no matter how much they’d like to.
John Sowinksi, president of No Casinos, views the Federal Indian Gaming Regulatory Act (IGRA) as the lynchpin in the case, because it states quite clearly that no Indian tribes can offer new games unless the game is already legal within a state. And sports betting isn’t currently legal in Florida.
Jarvis argues that the compact can get around this by legalizing sports betting on Seminole Tribe lands, while at the same time ignoring the fact that bettors will place bets statewide, which implicates Amendment 3, and which under the state constitution would automatically trigger a statewide referendum. Governor Ron DeSantis and the Seminoles have a magic “hand wave” answer for that, too. They’ll just “deem” that the bets placed outside of Seminole land don’t actually exist.
Ignoring this fictional location argument for a moment, the more immediate problem for the Compact is that the IGRA limits a tribe’s ability to offer only those games that are already legal. Sports betting is not already legal anywhere in Florida, and thus there’s simply no way for the Seminole Tribe to deem it legal on their own land, either.
“The Legislature doesn’t have the authority to authorize that today within the state,” Sowinski told the Florida Phoenix this week, “and therefore, according to federal law, they can’t negotiate to put that on the tribal land.”
The question boils down to whether or not a judge is going to side with the intent of Florida’s voters who quite clearly and in plain language overwhelmingly passed a constitutional amendment restricting any expansion of gaming in the state, or with a handful of allegedly clever lawyers who are bending over backwards to give the Florida Seminole Tribe a sweetheart deal for a period of time longer than it takes a newborn to grow up, finish elementary, middle and high school, earn a college degree, earn an advanced degree, get married, have a couple of children and become well established in a career.
Thirty years is a really long time to lock Florida into a deal predicated on a sports betting provision that is likely to face significant legal challenges.
And that brings us to the other problem. The way the language of the Compact reads, if the court finds the sports betting provisions unconstitutional, the rest of the Compact still remains in force. That means the Seminole Tribe still gets a long-term sweetheart deal with expanded table games like roulette and craps for the next 30 years, while leaving all other casino license holders with exactly nothing.
And right now, sports betting is the only thing in the Compact designed to soften the blow for all the other casino operators in the state, but it’s already a bad deal. There’s no way the Fan Duel’s and Draft Kings or any other casino license holder in Florida wants to fork over a massive chunk of their profits to the Seminole Tribe in exchange for being allowed to run the Seminole Tribe’s sports betting app with their own custom logos plastered over the top.
It’s no wonder the Seminole Tribe is making the case that this deal is not only generous, it’s also perfectly legal. But, oh well, if it’s not, too bad. The Tribe doesn’t care because they still get a lot of other stuff while their competition gets nothing.
Does that sound like a good deal for Florida voters?