Florida is one step away from becoming the latest state to legalize sports betting, but that final hurdle is a doozy.
And one expert believes Floridians being allowed to bet on sports from their couch will inevitably fail in court.
"You've got to be able to successfully run four gauntlets here if you want to ram mobile sports betting through a statue that makes pretty clear you can't do it," said Daniel Wallach, a gambling attorney and sports betting legal expert.
To catch you up, the Florida House on Wednesday joined the Senate in passing the new gaming compact agreed to between Governor Ron DeSantis and the Seminole Tribe. It still needs federal approval, but the 30-year deal would, among other things:
- Give the Tribe exclusive authorization to offer sports betting in Florida, both on-site and through online and mobile betting (even if the bettors are in a different location) in partnership with pari-mutuels.
- Creates a new $2.5 billion revenue-sharing guarantee over the next five years.
- Allows for full "Vegas-style" casinos on property, with the expansion of roulette, craps and other table games.
- They can also build three new casinos on the Tribe's Hollywood Reservation.
The governor says the approved deal would net the state at least $500 million a year in revenue and if approved, you could start placing your first sports bets in mid-October, but don't go checking the over-under on the Buccaneers Week 7 game just yet.
Wallach, who runs his own sports-betting-focused law firm, said placing a wager from your phone could be what kills the deal, and there's historical and legal presentence that explains why.
Simply put, under the Indian Gaming Regulatory Act, the gaming activity itself has to be done on tribal land itself.
"Look at it from the perspective of the gambler: the roll of the dice or the spin of the wheel," Wallach said. "Is that activity taking place solely on Indian land? When you look at those two concepts, they're unambiguous and they've already been defined by the highest court in the land and by the federal statute. Can you say that a wager placed on a mobile device in Key West is Indian land? Just because a server is located at the casino on Indian land? No, not under any current interpretation in federal law."
Wallach points out a "severability provision" in the gaming compact that could allow the courts to remove mobile sports betting from the deal, but the rest of it would remain in place, so roulette and craps could still be added and the state get a cut of the new gaming.
"I think the revenue share is very important to the state, but state lawmakers and the governor are operating under the premise that sports betting is going to be a big, big piece of this," Wallach said. "Without mobile, even if you're left with tribal reservation on-site sports betting, how lucrative is that going to be? You have a state of 21 million residents that are going to have to drive to the nearest travel casino...it will relegate Florida to essentially a small market."
It's the “on Indian lands” part of the IGRA that makes it extremely unlikely Floridians will be betting on sports from their phones anytime soon.
"The bettor who makes the bet from his mobile device, he's not at an Indian casino. Placing the server on the tribal land does not take the entire act of placing a bet and transform it into something that happens in a small reservation in Hollywood, Florida," Wallach said. "It's unrealistic, doesn't comport with reality and it flies in the face of Congress' intent. To adopt the Seminole and governor's position here, you'd have to say the entire state of Florida is Indian land, and that is illogical."
So, what's the path for mobile sports betting to become legal in Florida, if the high courts remove that part of the compact?
Wallach said it'll be up to the will of the people in 2022 - or beyond.
"Floridians could face the prospect of no mobile sports betting while this battle plays out in the courts in 2021, 2022 and maybe even 2023," he said, "which does raise the prospect of a voter referendum initiated through a ballot measure sponsored by the stakeholders - the DraftKings and FanDuels of the world - to band together and fund a state-wide campaign to bring mobile betting to the state of Florida."
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