Case: 25-7516, 01/30/2026, DktEntry: 49.2, Page 23 of 41
Furthermore, only Kalshi (a private company with a direct financial interest in offering sports betting free from regulation), 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 established 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 (which the CFTC does not claim for itself) indicates that Kalshi is wrong about the meaning of “swap.” See Event Contracts, 89 Fed. Reg. 48968, 48982–83 (June 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.”). Contrary to what Kalshi argues, ECF No. 20.1 at 32, the CFTC’s own actions confirm that it has not asserted authority to regulate sports betting. In a recent advisory letter, the CFTC clarified it has not “taken any official action to approve the listing for trading of sports-related event contracts on any DCM.” CTFC Staff Letter No. 25-36 at 2 n.4 (Sep. 30, 2025). In this advisory letter, the CFTC noted that “at least one federal district court has found that the [CEA] does not preempt the application of State gambling, wagering, and gaming laws to
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