Case 2:25-cv-00978-APG-BNW Document 105 Filed 10/14/25 Page 18 of 27
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factual distinctions Crypto makes between itself and a typical casino sports book do not distinguish Crypto’s event contracts from sports wagers at Nevada casinos when considered under the statutory definition of a swap. But casinos have openly operated sports books and accepted sports wagers on the outcomes of sporting events in this state and others both before and after the 2010 amendments to the CEA. 13 And no one, including Congress and the CFTC, has suggested those bets are “swaps” that had to be conducted on a DCM. At the hearing I held on the pending motions, Crypto stated that the “CFTC has never taken the position and we have never taken the position that all gaming [wagers] are swaps regulated by the CFTC.” ECF No. 104 at 51. But Crypto does not explain why that is not the necessary implication of its position. Because if the statutory definition of swaps covers contracts on the outcome of sporting events that have a potential financial or economic consequence, and all swaps must be done a DCM absent exceptions not applicable to casinos and the average sports bettor, then all sports betting must be done on a DCM. Had Congress intended such a sea change in the regulatory landscape, it surely would have said so. See Whitman v. Am. Trucking Ass’ns , 531 U.S. 457, 468 (2001) (“Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.”). The CEA’s language and legislative history show that Congress did not intend such a change and, to the contrary, did not want gambling to take place on CFTC-designated exchanges. As discussed above, Congress enacted the special rule granting the CFTC authority to determine whether swaps for such person’s own account, either individually or in a fiduciary capacity, but not as a part of a regular business;” and persons the CFTC exempts due to their de minimis quantity of swap dealing “in connection with transactions with or on behalf of its customers.” Id. §§ 1a(49)(A), (C), (D). 13 See Murphy v. Nat’l Collegiate Athletic Ass’n , 584 U.S. 453, 462 (2018).
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