USCA4 Appeal: 25-1892
Doc: 44
Filed: 12/22/2025
Pg: 28 of 39
Furthermore, only Kalshi (an interested private company), not Congress or the CFTC, claims that the CEA’s definition of “swap” displaces tribal, state, and federal regulation of sports betting. The text and legislative history of the 2010 CEA amendments, as well as subsequent CFTC actions, confirm that the CFTC was not meant to regulate sports betting, let alone assume the role of the nation’s sole sports-betting regulator. Ultimately, Kalshi’s attempt to foist authority onto the CFTC that it does not claim for itself indicates that Kalshi is wrong about the meaning of “swap.” Cf. N. Carolina Coastal Fisheries Reform Grp. v. Capt. Gaston LLC , 76 F.4th 291, 299 & n.8 (4th Cir. 2023); Event Contracts, 89 Fed. Reg. 48968, 48982–83 (Jun. 10, 2024) (“The [CFTC] is not a gaming regulator. … and the [CFTC] does not believe that it has the statutory mandate nor specialized experience appropriate to oversee [gambling], or that Congress intended for the [CFTC] to exercise its jurisdiction or expend its resources in this manner.”). The CFTC’s recent actions confirm that it has not asserted authority to regulate sports betting. In a recent advisory letter, the CFTC clarified it has not
Resp. in Opp. to Emergency Mot. to Dissolve Prelim. Inj. at 7, Hendrick , No. 2:25- cv-00575 (Oct. 31, 2025), ECF No. 183. But “the CEA does not expressly delegate to the CFTC the exclusive power to decide what is a swap … [and] [n]othing in the CEA takes statutory interpretation away from courts.” Crypto.com , 2025 WL 2916151, at *6.
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