§ 40.11(a)(1) and therefore fall outside the scope of the CFTC’s exclusive jurisdiction. As explained above, Kalshi’s sports event contracts constitute sports betting. As such, they necessarily involve gaming in violation of § 40.11(a)(1). In fact, Kalshi’s own position before the D.C. Circuit confirms the categorical determination the CFTC made under § 40.11(a)(1) regarding “gaming” extends to Kalshi’s sports event contracts: An event contract . . . involves “gaming” if it is contingent on a game or a game-related event—like the Kentucky Derby, Super Bowl, or Masters golf tournament , all of which were mentioned in the provision’s only legislative history. Br. of Appellee, KalshiEX LLC v. CFTC , No. 24-5205, Doc. No. 2085055 at 31 (D.C. Cir. Nov. 15, 2024) (emphasis added). Although it did not directly rule on the legality of sports event contracts, the U.S. District Court for the District of Columbia effectively adopted Kalshi’s definition of “gaming” under the CEA. See KalshiEX LLC v. CFTC , No. 1:23-cv-03257 (JMC), 2024 WL 4164694, *12 (D.D.C. Sept. 12, 2024). Kalshi’s sports event contracts, thus, involve “gaming.” Additionally, because Kalshi’s sports events contracts constitute gaming, they also violate various federal and state laws. Kalshi allows participants to purchase its sports event contracts on Indian lands; this amounts to a speculative sports wager, which is gaming activity. Kalshi’s sports event contracts do not meet any of the requirements for gaming on Indian lands described above. See 25
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