Florida continues to take aim against sports betting

While the phenomenon of axe throwing continues to sweep the nation, it’s clear that the target at the moment in Florida is sports betting, of any kind.

Last Tuesday, the Florida Gaming Control Commission issued cease-and-desist letters to Underdog Sports, LLC, which is based in Brooklyn, New York; SidePrize LLC, also known as Performance Predictions, doing business as PrizePicks, which is based in Atlanta, Georgia; and Betr Holdings, Inc., which is based in Miami.

Letters to all three Daily Fantasy Sports operators stated, “The Florida Gaming Control Commission has received information that your company may be offering or accepting legal bets or wagers from Florida residents. We have also received information that your company may be promoting and conducting an illegal lottery. This alleged conduct is strictly prohibited in Florida and constitutes criminal activity.”

The fact that the letter referenced the lottery component is interesting.

“When we’re talking about fantasy games, we’re talking about games of skill or involving some significant amount of skill,” said Michelle Cohen, a partner with Ifrah Law in Washington, D.C., to Casino City Press. “Lotteries are games of chance. I thought that was really mixing apples and oranges, and just trying to pull anything from the statutory arsenal. I think it’s been fairly established in many states that fantasy games involve skill, so to put this in the same category as a regular lottery, which is purely a game of chance, just seemed completely off course to me.”

According to the Florida Gaming Control Commission website, gambling as covered under Florida Statute 849.08, is “whoever plays or engages in any game at cards, keno, roulette, faro or other game of chance, at any place, by any device whatever, for money or other thing of value, shall be guilty of misdemeanor of the second degree, punishable as provided in statutes s. 775.082 or s 775.083.”
Daily Fantasy Sports occur when customers assemble virtual rosters of professional players to compete against other customers assembled virtual rosters either for bragging rights or cash.

This is where it gets tricky.

Currently, only pari-mutuel wagering for horse racing, harness horse racing, quarter horse racing, jai alai games and cardroom poker games are authorized in The Sunshine State.

No where in the Florida statutes does it prohibit Daily Fantasy Sports.

Ironically though, the cease-and-desist letter references Florida Statute 849.14, which states that “contests in which the skill of the contestant predominates over the element of chance, such as in certain sports contests, do not constitute prohibited lotteries.”

“I could cite this same decision for supporting the model,” said Cohen. “That decision does not say that all fantasy sports would be in violation of the law. It actually distinguishes between wagering and winning a prize for a contest of skill. Even in the actual decision they cited, they did not say that all fantasy sports are unlawful. It actually distinguishes between different types.”

Nonetheless, Louis Trombetta, the Executive Director of the Florida Gaming Control Commission, stated in the letters to all three Daily Fantasy Sports operators, “I am hereby demanding you immediately cease and desist offering or accepting bets or wagers from residents of this state on the results of any contests of skill such as sports betting, including, but not limited to, bets or wagers made in connection with fantasy sports. Additionally, I am hereby demanding you immediately cease and desist promoting or conducting any illegal lotteries. This includes, but is not limited to, giveaways of cash or other prizes designed to include Florida residents to sign up for or place otherwise illegal bets or wagers on your platform. Your failure to comply will result in the Florida Gaming Control Commission taking any and all appropriate action, including referring this matter to the Attorney General’s Office of Statewide Prosecution.”

It should be noted that the Florida Gaming Control Commission did not send any such letters to top two daily fantasy sports companies, DraftKings, which is based in Massachusetts, or FanDuel, which is based in New York.

This news all comes on the heels of the potential relaunch of The Seminole Tribe’s Hard Rock Bet in Florida.

At the heart of the matter is whether the U.S. Department of the Interior rightfully approved the 2021 compact signed by Governor Ron DeSantis between the state of Florida and the Seminole Tribe, which granted the tribe a monopoly on retail and sports betting in The Sunshine State.

The latest news came yesterday when the U.S. Department of the Interior objected to the South Florida gaming operator West Flagler’s motion for state of a mandate to the 2021 Florida Gaming Compact. As a result of the motion, West Flagler now has until Monday, 2 October to respond to the objection and until Monday, 11 December to file a Writ of Ceratori with the Supreme Court of the United States.

As a result of the filing yesterday, the relaunch of The Seminole Tribe’s Hard Rock Bet will have to wait at least another week, but it’s likely to be longer, as it’s expected that West Flagler will respond to the objection and take this to the Supreme Court of the United States if the motion is denied.

“They [the Supreme Court] likes meaty issues,” said Cohen. “They like unsettled law in other courts of appeal. It can be hard to judge if they’ll take the case. Sometimes they don’t take it for various reasons. They don’t think it’s kind of right yet. They’re not ready to rule on it.”