Case: 25-7504, 01/16/2026, DktEntry: 38.1, Page 39 of 47
oversight—as they notoriously were not in the lead up to the 2008 finan- cial crisis. See Dodd-Frank Background, supra note 2, at 1, 23-24. If Congress had legalized sports betting in 2010, it would not have escaped notice until 2025. After all, the “legalization of sports gambling is a con- troversial subject.” Murphy , 584 U.S. at 486. Second, adopting Kalshi’s theory would mean that all sports wa- gering must take place on a CFTC-regulated exchange. See, e.g. , Hen- drick , 2025 WL 3286282, at *8-9. Under the CEA, it is generally “un- lawful for any person . . . to enter into a swap unless the swap is entered into on, or subject to the rules of” a CFTC-registered market. 7 U.S.C. § 2(e). Accordingly, Kalshi’s position, if adopted, would channel all sports wagers into those markets—and thereby transform the CFTC into the nation’s gaming regulator. The Commission itself has noted the folly of that outcome. “[I]n the United States,” the Commission has explained, “gambling is over- seen by state regulators with particular expertise, and governed by state gaming laws aimed at addressing particular risks and concerns associ- ated with gambling. The Commission is not a gaming regulator.” Event Contracts , 89 Fed. Reg. 48,968, 48,982-48,983 (proposed June 10, 2024)
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