Case: 25-7187, 03/10/2026, DktEntry: 75.1, Page 25 of 43
Furthermore, only Crypto.com (a private company with a direct financial interest in offering sports betting free from regulation), not Congress, 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 confirm that the CFTC was not established to regulate sports betting, let alone assume the role of the nation’s sole sports-betting regulator. And, historically, the CFTC likewise did not assert such authority itself. 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.”). then, would prevent Crypto.com from calling “contracts” on other traditional forms of gaming, like roulette, “swaps” and subjecting them to the exclusive jurisdiction of the CFTC? According to Crypto.com, CFTC inaction—despite banning “gaming” contracts via 17 C.F.R. § 40.11(a)(1)—is all that is required to bless contracts blatantly designed for no other purpose than to enable gambling. Crypto.com’s theory would likewise strip this Court of its own jurisdiction to interpret what constitutes a “swap.” Crypto.com argues that such determination is exclusively up to the CFTC and would only be judicially reviewable under an Administrative Procedure Act challenge. See id. at 34, 62–63. But, as the district court properly held, “the CEA does not expressly delegate to the CFTC the exclusive power to decide what is a swap. … It is emphatically the province and duty of the judicial department to say what the law is.” See ER-19–20 (citation modified).
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