NFL, Dodd, and Gensler File Amicus Briefs Urging Supreme Court Review of Kalshi Prediction Market Ruling

A group of influential non-parties has filed amicus briefs pressing the U.S. Supreme Court to review whether the Commodity Exchange Act preempts state authority over sports event contracts. The filings target the 3rd Circuit decision in Kalshi v. Flaherty, which held that the CFTC holds exclusive jurisdiction because such contracts qualify as swaps under the CEA as amended by Dodd-Frank.

The briefs, submitted last Friday, come from the NFL, former U.S. Senator Christopher Dodd, and former CFTC Chairman Gary Gensler. They are joined by 145 Indian tribes and tribal organizations, the American Gaming Association, and the Casino Association of New Jersey. Each urges the Court to reject the 3rd Circuit approach and preserve traditional state and tribal regulatory power.

Core Dispute Over the Definition of Swap

At stake is the statutory meaning of “swap” under the Dodd-Frank Act of 2010. The 3rd Circuit read the CEA language covering agreements dependent on the occurrence or non-occurrence of an event or contingency to include sports outcomes. That interpretation would bring prediction markets within exclusive CFTC oversight and block conflicting state laws.

Christopher Dodd and Gary Gensler counter that Congress never intended to reclassify sports wagers as swaps or displace the regime established by the Professional and Amateur Sports Protection Act (PASPA) of 1992. “Congress did not transfer jurisdiction over sports betting from the States to the CFTC,” Gensler writes. He adds that the Senate majority leader at the time, Harry Reid of Nevada, would never have accepted such a result.

Dodd emphasizes that a sports wager payout cannot itself supply the required “potential financial, economic, or commercial consequence.” The NFL brief highlights separate practical concerns, warning that certain event contracts create “significant risks for the NFL’s players, coaches, and officials, and market participants.”

The CFTC reinforced this view with an Interim Final Rule stating that casino-style gambling products, including sports-wagering contracts on sportsbooks, are not swaps. The 9th and 6th Circuits treat sports event contracts as equivalent to traditional sports bets subject to state licensing.

Certiorari Prospects and Market Implications

A clear circuit split now exists on the same activity. Sports betting is legal and regulated in 39 states, Washington, D.C., and Puerto Rico, yet remains illegal in 11 states. According to reporting by Sportico, this divergence creates uncertainty, forum shopping, and unequal treatment that often prompts Supreme Court review despite its overall 1% to 2% grant rate for certiorari petitions.

Kalshi’s response is not due until Nov. 9. A grant of certiorari would offer the Court an opportunity to resolve whether prediction markets may operate nationwide under CFTC rules or must instead secure state and tribal approvals in each jurisdiction where the underlying sports wagering is permitted. The resolution will directly shape licensing strategies, enforcement priorities, and product design for operators in this segment.

Reporting: Sportico

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