Case: 25-7831, 03/10/2026, DktEntry: 81.1, Page 35 of 43
regulating financial instruments and markets, and do not include provi- sions aimed at protecting against gambling-specific risks and concerns, including customer protection concerns inherent to gambling.” Id. Con- sistent with the CFTC’s inexperience as to gambling, Congress allowed the CFTC to prohibit contracts involving “gaming” from being listed on CFTC-regulated markets. 7 U.S.C. §7a-2(c)(5)(C). To that end, the CFTC promulgated a regulation making clear “[a] registered entity shall not list for trading” a “swap based upon an excluded commodity” that “involves, relates to, or references,” among other things, “gaming.” 17 C.F.R. §40.11(a)(1). Both the statutory provision and corresponding regulation are curiously absent from the CFTC’s brief. Another feature of the federal scheme exacerbates the problem. Fed- eral law allows prediction markets to self-certify the contracts they list, with no pre-approval from the CFTC. See 7 U.S.C. §7a-2(c)(1). That hands-off approach, combined with an inexperienced regulator, is a sure formula for irresponsible sports betting. It is improbable, to say the least, that Congress would have left such a gap. B. The CFTC does not seriously engage with the topic of regulatory experience. Nor does it discuss, in any real detail, what it is doing (or
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