The league argues sports event contracts create risk instead of hedging it, so federal derivatives law does not displace state gambling rules. Ohio and 38 other states and the District of Columbia filed a separate brief a day earlier.
The National Football League asked the Supreme Court on Thursday to take up New Jersey's challenge to Kalshi, filing a brief that argues the exchange's sports event contracts are not swaps and that federal derivatives law therefore leaves state gambling rules intact.
The league filed as amicus curiae in Flaherty v. KalshiEX, No. 26-299, which New Jersey's gaming regulators brought after the Third Circuit held in April that Kalshi's contracts fall inside the Commodity Futures Trading Commission's exclusive jurisdiction. The Supreme Court's public docket records the brief as submitted on October 8. Kalshi's response to the petition is not due until November 9, after the clerk granted the exchange a month's extension in September.
The signature block on the brief lists Theodore W. Ullyot and Douglas P. Paoletti of the NFL alongside three lawyers from Torridon Law, among them William P. Barr, who served two terms as United States attorney general. Cody L. Reaves is counsel of record.
The argument turns on what a swap is for. The brief says swaps have historically served to offset risk a party already carries, and that congressional derivatives regulation was built around that purpose, while sports event contracts create new risk for the consumer rather than hedging existing risk. It concludes that "sports-related event contracts are not naturally considered swaps under the CEA."
It also faults the Third Circuit for a reading that, in the brief's words, "need not go further" than the bare possibility of a financial consequence. Two canons should push the other way, the league argues. The first is constitutional avoidance: gambling has long sat within state police powers, and a broad reading would render ordinary sports bets placed away from a registered exchange unlawful under the Commodity Exchange Act. The second is the major questions doctrine, on the ground that federalizing a state-by-state industry on the strength of an agency's asserted exclusive jurisdiction deserves skepticism.
The brief says the Sixth and Ninth Circuits read the statute correctly. Both diverged from the Third Circuit on the meaning of swap and on preemption, and the Sixth Circuit's ruling that Kalshi's sports contracts are not swaps sharpened a split that had already left two appeals courts in open disagreement.
The NFL is not the first outside party to weigh in. The docket lists six amicus briefs at the certiorari stage. Ohio, 38 other states and the District of Columbia filed one on October 7, the day before the league. The rest came from the National Council of Legislators from Gaming States on September 22, the International Association of Gaming Regulators and others on October 2, the Cabazon Band of Cahuilla Indians on October 6, and a group of Stop Predatory Gambling, the Association of American Physicians and Surgeons and Texans Against Gambling on October 7.
On volume, the brief says $1.8 billion of the $3.3 billion traded on prediction markets during the first Sunday of the NFL season was tied to NFL events. It cites no source for that figure. Its other numbers carry citations: more than $25 billion traded across CFTC-registered prediction markets in 2025, attributed to the Federal Register; more than $173 billion cleared by Kalshi during 2026 as of late August, attributed to CNN; and sports accounting for 80% of Kalshi's volume since 2024, attributed to Pew Research Center.
Much of the document is about which contracts the league wants off the board. It argues that markets easily manipulable by a single person, tied to officiating decisions, or knowable in advance should be banned, naming bets on whether a kicker will miss a field goal, on injuries, on penalty counts and on whether the first play of a game is a run or a pass. It calls insider-trading policies "paper tigers" without lists of prohibited bettors supplied by the leagues themselves, and says Kalshi "has not engaged with the NFL to facilitate compliance." The league also asked the commission to set a minimum trading age of 21, and the brief says the agency declined and permits 18-year-olds.
Kalshi rejected the league's position, according to The Block, saying it prioritizes market integrity, that the CFTC already polices sports-related markets, and that federal oversight is more consistent than regulation state by state.
Other major leagues have taken licensing deals rather than litigation. The Block reports that Major League Baseball named Polymarket its exclusive prediction market partner this year, that the NHL holds licensing agreements with both Polymarket and Kalshi, and that Polymarket signed an exclusive deal with Major League Soccer in January.
The Court has not acted on the petition. Kalshi's brief in opposition is due November 9.
