Case: 25-7831, 03/10/2026, DktEntry: 81.1, Page 28 of 43
claimed that its jurisdiction was broad enough to override the States’ au- thority over sports betting. In fact, just two years ago, the CFTC recog- nized that “gambling is overseen by state regulators” and that there is no “statutory mandate” to the contrary. 89 Fed. Reg. at 48982–83. Depart- ing from its past restraint, the Commission now claims to have discov- ered, within fifteen-year-old statutory text, “an unheralded power” that would drastically expand its authority. See West Virginia , 597 U.S. at 724 (quotation omitted). That claim warrants skepticism. In practical effect, the breadth of the CFTC’s position is immense. If Crypto’s and Kalshi’s sports bets qualify as swaps within the CFTC’s ex- clusive jurisdiction, then traditional sports bets cannot be treated in any other fashion. Under the federal definition, a swap is any type of “agree- ment, contract, or transaction” that satisfies certain conditions. 7 U.S.C. §1a(47)(A). If an agreement satisfies those conditions, the federal scheme makes it generally “ unlawful for any person” to enter into such an agree- ment except via a CFTC-regulated contract market. 7 U.S.C. §2(e) (em- phasis added). Thus, when unpacked, the CFTC’s real argument is that all sports betting must occur on CFTC-regulated markets. The CFTC seems to realize these implications. See CFTC Br.4, 13, 23. Its brief
22
Made with FlippingBook - Online catalogs