Case: 25-7516, 01/30/2026, DktEntry: 49.2, Page 15 of 41
including sports betting conducted by tribes under IGRA—is prohibited by the CEA. With one inapplicable exception, the CEA prohibits off-market swaps. See 7 U.S.C. § 2(e). Consequently, if all sports-betting contracts are swaps, “then all sports betting must be done on a DCM.” N. Am. Derivatives Exch., Inc. v. Nevada Gaming Control Bd. ( Crypto.com ), No. 2:25-cv-00978, 2025 WL 2916151, at *9 (D. Nev. Oct. 14, 2025), appeal filed , No. 25-7187 (9th Cir. Nov. 13, 2025). Kalshi’s argument thus does double violence. On one hand, by permitting Kalshi to offer sports betting on tribal land, its argument sweeps aside Congress’s recognition that “Indian tribes have the exclusive right to regulate gaming activity on Indian lands ….” 25 U.S.C. § 2701(5). On the other hand, it prohibits tribes from offering sports betting that IGRA plainly authorizes. See 25 C.F.R. § 502.4(c). Moreover, if Kalshi’s position is adopted, the reach of this definition would extend beyond sports betting to encompass other forms of gaming because, as the lower court correctly held, Kalshi’s preemption argument depends on embracing an interpretation of “swap” that has “no limiting principle.” 1-ER-13; see Crypto.com , 2025 WL 2916151, at *9. Kalshi’s definition of “an event or contingency associated with a potential financial, economic, or commercial consequence” is so broad that it necessarily includes betting on other casino games or class III gaming. This means that virtually all gaming activity across the
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