Thought The Arizona Sports Betting Lawsuits Were Over? Surprise: You Were Wrong

Written By John Holden on September 16, 2021

Many thought the fight over licenses for legal sports betting in Arizona was over when Maricopa Superior Court Judge James Smith denied the motion for a preliminary injunction earlier this month.

Well, those people were likely caught off guard when the Yavapai-Prescott Indian Tribe (YPIT) returned.

The YPIT filed a notice of lodging just two days after that ruling. And two days after that — the same day regulated wagering launched in Arizona — came an amended complaint from the tribe.

The cat might be out of the bag after Arizona sports betting launched Sept. 9. But the YPIT is back for a second effort.

What exactly is a notice of lodging?

A notice of lodging is the legal term for providing something to the court. This often occurs when a document is filed with the court but is missing an exhibit that is referenced.

The Notice of Lodging docket entry, in this case, indicates the tribe was lodging the deposition of Robert Gazzam Ogo.

The denial of the motion for injunctive relief

The filing offers a look at Smith’s 12-page decision following the Sept. 5 emergency hearing of the Yavapai-Prescott’s emergency hearing. Smith found that the YPIT was unlikely to have success on the merits of any of the claims it raised.

Smith noted that an analysis of possible irreparable harm is the second step in evaluating whether an injunction is proper. Still, first, a plaintiff must establish a likelihood of success on the merits. Nonetheless, the judge stated:

“The Tribe did not establish a meaningful risk of irreparable harm based on speculative revenue decreases.”

Regarding the balancing of hardships prong evaluating a motion for a temporary restraining order or injunction, Smith found that that prong would appear to tilt in YPIT’s favor. Except for the fact that the tribe appears unlikely to succeed on the challenges to the constitutionality of the law.

As for evaluating the public policy concerns, Smith ruled against the YPIT.

A second try for Yavapai-Prescott against AZ sports betting

Undeterred by the lack of success on its first go-round, the YPIT filed an amended complaint with the Superior Court of Arizona in Maricopa County on Sept. 9.

Like the first lawsuit, the amended complaint names Gov. Doug Ducey and Arizona Department of Gaming Director Ted Vogt as the defendants.

Similarly, the claims regarding the court’s jurisdiction and the case’s venue remain unchanged.

The amended complaint adds a paragraph that states:

“According to Attorney General Mark Brnovich, Class III gaming included ‘any ‘electronic or  electromechanical facsimiles of any game of chance or slot machines of any kind,’ which includes event wagering and fantasy sports betting.”

A noticeable departure

The YPIT’s amended complaint goes on to add a state from the 2002 Arizona Proposition 202, which states that gaming revenues have been instrumental in providing economic opportunities to the state’s tribal communities.

The amended complaint  continues by providing additional detail as to the scope of the Indian Gaming Regulatory Act (IGRA) and notes that Proposition 202 states:

[a] ll gaming facilities shall be located on the Indian lands of the Tribe [and] [t]he tribe shall notify surrounding communities regarding new or substantial modifications to gaming facilities and shall develop procedures for consultation with surrounding communities regarding new or substantial modifications to gaming facilities (emphasis in original).

Is Proposition 202 the key for the Yavapai-Prescott?

Indeed, as highlighted in detail in the amended complaint, the YPIT offers a great deal of discussion regarding confining gaming to tribal land in the legislative history surrounding the measure’s passage.

While there is a great deal of supportive new information contained in the amended complaint, the crux of the argument still revolves around whether this law was passed within the scope of the legislature’s powers or whether gaming expansion in Arizona requires approval of the state’s voters.

What to make of the amended Yavapai-Prescott complaint

The amended YPIT complaint details that at a 2016 meeting to discuss a new compact, the governor’s office presented the tribe with an agreement to amend the compacts signed by nine other tribes. However, the tribe claims it never faced an opportunity for negotiations. The YPIT also states that the governor’s office:

“demanded that YPIT execute a non-disclosure agreement so that the information provided to YPIT could not be shared with other Tribes who were not at the meeting and vice versa.”

Still, the YPIT faces long odds in its second effort to return the Arizona sports betting scene to its pre-Sept. 9 stasis.

The amended complaint appears to address a number of the deficiencies that Smith highlighted in his earlier ruling. However, one of the big questions that remain—besides whether we can put the sports betting cat back in the bag—is whether there is enough here to make a difference.

The Yavapai-Prescott’s amended complaint makes several serious new allegations. But it is not clear if that will be enough to achieve a different result.

Photo by AP / Matt York
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