What implications does the Florida case have for states where online sports betting is already legal through commercial operators? Behnam Dayanim: In states in which sports betting is already legal and operational, the ramifications are likely to be modest, at least in the near term. In most of those states, the existing hierarchy of operators is well-established, and the ability for a new entrant to attract substantial market share would seem limited. Derril Jordan: I don’t think it has any implications. There’s nothing in this decision that says where a state has legalized internet sports betting, it must enter into a compact with any tribes within its boundaries to do the same thing. That’s not what this case was about. So, in that respect, the decision doesn’t say anything about what a state must do with regard to tribes if it has otherwise legalized gaming. According to the language of IGRA, if a state allows any form of gaming, it must compact with all interested tribes. So, if they’re permitting it for anyone, they have to compact with every tribe that wants to. How might the Florida ruling impact the ongoing debate about the expansion of sports betting and iGaming in states like California and Texas? Behnam Dayanim: West Flagler isn’t an express lane for either one of the states. In California, with approximately 110 recognized tribes, creating the cohesion necessary to arrive at consensus conclusions on issues such as revenue share, exclusivity and consent for wagering on other tribal lands is going to be a tough nut to crack. In Texas, there is both strong anti-gambling sentiment among the state’s conservative base and a very determined, pro-regulation effort spearheaded by commercial gaming and sports-team interests. With that as a backdrop, a political outcome that results in legalization with true tribal exclusivity seems unlikely. Derril Jordan: If a state was taking the position that it was unsure how it could compact with tribes to conduct online sports betting because the gaming wouldn’t be on tribal lands, this case takes that excuse away, because it proves there’s a way that it can be done. Finally, in your expert opinion, what is the most likely long-term impact of the West Flagler Associates v. Haaland decision on the landscape of iGaming in the U.S.? Behnam Dayanim: The decision, coupled with the DOI amendments to IGRA, clears a path for states to negotiate tribally sponsored iGaming without fear of running afoul of federal law. The issue now sits squarely with the states and the tribes. Derril Jordan: Just looking at the history of IGRA and how tribal gaming expanded beyond anybody’s expectations since 1987, my guess is it will have a big impact. It might take a little while, but I think there’ll be an expansion. And I think it will be positive for the tribes in terms of revenues. What I’m waiting to see is the situation where a state has permitted commercial internet gaming but won’t compact with the tribes or tells the tribes that they have to compete with other tribes. And the tribe says that’s not what the law says, and then there’s a lawsuit over that issue. Perhaps that’s the next shoe to drop. Where you have a state that has iGaming but is not willing to negotiate compacts with the tribes and says they have to compete for state licenses, and then the tribes challenge that thinking. That’s likely going to be the next frontier for this issue. If there’s a situation where the state has legalized mobile sports betting, then I don’t think there’s any meaningful concession to be made by the state to a tribe that would justify revenue sharing. 25 GPWAtimes.org
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