Case 2:25-cv-00978-APG-BNW Document 75 Filed 09/15/25 Page 6 of 20
any event contract that “involves, relates to, or references … gaming, or an activity that is unlawful
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under any State or Federal law.” 17 C.F.R. § 40.11(a)(1); see also 76 Fed. Reg. 44,776 (July 27,
2011). Thus, in promulgating § 40.11(a)(1), the CFTC made the categorical determination that
event contracts involving these specific activities are contrary to the public interest. 4 Crypto.com’s sports betting operation rests entirely on an assumption that it alone has the
preemptive authority to self-certify that its gaming activities do not violate the CEA, CFTC
regulations, IGRA, or other federal statutes. But it is inconceivable that Congress would have
granted a private, for-profit entity the authority to conduct nationwide sports betting—including on
Indian lands—without explicitly stating as much, especially in the face of comprehensive statutes
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and regulations governing gaming on Indian lands. It is axiomatic that “Congress … 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.” Whitman v. Am. Trucking Ass’ns , 531 U.S. 457,
468 (2001).
Ignoring this history and longstanding principles of federal statutory interpretation,
Crypto.com now presents an alternate reality—one in which a statutory scheme whose scope is
limited to addressing the risk, discovery, and dissemination of commodity pricing information, see
7 U.S.C. § 5(a)–(b), exclusively governs nationwide sports betting, including that which occurs on
Indian lands, thereby preempting the comprehensive regulatory scheme set forth in IGRA. Clearly,
this cannot be the case. Any preemptive effect that the CEA has only applies to lawful transactions
that fall under the CFTC’s exclusive jurisdiction. See 7 U.S.C. § 2(a)(1)(A). Crypto.com’s sports
event contracts are neither.
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4 When announcing its rule, the CFTC clarified:
[I]ts prohibition of … “gaming” contracts is consistent with Congress’s intent [for the CEA’s Special Rule] to “prevent gambling through the futures markets” and to “protect the public interest from gaming and other events contracts.”
76 Fed. Reg. at 44,786 (citations omitted).
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