The NFL told the Supreme Court sports contracts are not swaps. Here is what the brief actually asks for.
Where the case stands
The docket matters more than the headlines here, so start with it. New Jersey's gaming regulators filed their petition for certiorari on 2 September 2026, asking the Court to review the Third Circuit's 6 April ruling that Kalshi's sports contracts fit the federal definition of a swap and so fall under the exclusive jurisdiction of the Commodity Futures Trading Commission. Kalshi's response was originally due 8 October; on 22 September the Clerk granted an extension to 9 November. The question presented is whether the CFTC's exclusive jurisdiction over swaps displaces state gambling law for sports event contracts.
| Date (2026) | Docket entry in No. 26-299 |
|---|---|
| 2 Sep | Petition for certiorari filed by New Jersey Division of Gaming Enforcement |
| 22 Sep | Kalshi's response deadline moved from 8 Oct to 9 Nov; amicus brief from the National Council of Legislators from Gaming States |
| 2 Oct | Amicus brief from the International Association of Gaming Regulators et al. |
| 6 Oct | Amicus brief from the Cabazon Band of Cahuilla Indians |
| 7 Oct | Amicus briefs from Ohio, 38 other states and the District of Columbia; and from Stop Predatory Gambling, the Association of American Physicians and Surgeons and Texans Against Gambling |
| 8 Oct | Amicus brief from the National Football League |
| 9 Nov | Kalshi's response due |
The NFL is therefore the sixth amicus filing in support of the petition, arriving a day after 39 states and D.C. told the Court they are "at an impasse over who can regulate" these products. Against that stack of filings sit three appellate decisions pointing in two directions: the Third Circuit for Kalshi in April, the Ninth Circuit for Nevada on 28 August, and the Sixth Circuit for Ohio and Tennessee on 25 September. We covered the Supreme Court timeline in Will the Supreme Court take the Kalshi case? and the state-by-state injunction record in States are beating Kalshi 19-4.
The legal argument: a swap hedges a risk you already have
The NFL's core argument tracks the Sixth and Ninth Circuits. Under Dodd-Frank, a swap is an instrument used to exchange payments to manage an existing financial exposure, the way a company hedges interest rates or currency moves. A contract on whether the Cowboys cover the spread does not transfer a pre-existing risk from one party to another; it manufactures a new one, which is what gambling is. The brief adds a historical point: when Congress wrote the swap definition in 2010, the Professional and Amateur Sports Protection Act still banned sports betting almost everywhere, so Congress cannot plausibly have intended to legalise nationwide sports wagering by calling it a swap.
Kalshi's position is the mirror image: its contracts are swaps under the Commodity Exchange Act, the CFTC has exclusive jurisdiction over swaps on a designated contract market, and states are pre-empted. The Third Circuit accepted that. The Ninth Circuit called the distinction between event contracts and sportsbook bets "unpersuasive", and the Sixth Circuit held that even if the contracts are swaps, state gambling law is not pre-empted. That last point is why the two CFTC rules now at the White House may not settle anything on their own.
What the league actually wants
The brief is explicit that the NFL does not oppose Kalshi or Polymarket listing football contracts. What it objects to is the rulebook they operate under.
| NFL ask | Licensed sportsbooks | Prediction markets today |
|---|---|---|
| Minimum age | 21 in every state market | 18 under CFTC rules; the NFL says the CFTC rejected its request to raise it |
| Prohibited-wager list | Adopted by DraftKings, FanDuel and Fanatics, the league's three partners | Not adopted; the NFL says Novig complied with a pre-season request, Kalshi and Polymarket withdrew some markets but still list others |
| Prohibited-bettor lists | Shared with licensed operators to block insiders | Not accepted by the exchanges, according to the brief |
| Listing new markets | Regulator approval of the wager catalogue | Self-certification; a contract can trade the next business day |
| Rulemaking | State rules in force since 2018 | The NFL's May 2026 petition for rulemaking has had no response; the CFTC's June proposal "falls well short", per the brief |
The four categories of contract the league calls objectionable are the ones it has been writing letters about since March: missed field goals, player injuries, officiating decisions, and individual plays such as a quarterback's first pass or a running back's first carry. The brief says these "present significant and immediate threats to the integrity of sporting events and to market participants", and that the CFTC's "failure" to address them is "deeply concerning". The CFTC's June proposal, a 267-page document, would allow contracts on final scores, spreads, win-loss outcomes and season-long statistics while barring single-play contracts. The NFL's complaint is that it is not yet law and does not go far enough.
The headcount argument
The most quotable number in the filing is 543. That is the CFTC's employee count as of September 2025, which the brief sets against gaming boards in Pennsylvania and Nevada that each employ close to 400 people to supervise one state. Legal Sports Report puts the CFTC's staff loss since January 2025 at around 25%. The agency currently has a single sitting commissioner, Chair Mike Selig, and the Government Accountability Office is examining its staffing after a July letter from Senator Elizabeth Warren. The league's conclusion, in the words it gave CNBC, is that "this is a job better left to the states."
The counter-argument, made by the Coalition for Prediction Markets, is that "national financial markets require a national regulator" and that "a patchwork of state gambling regulations would fragment oversight." Polymarket said much the same, preferring "consistent nationwide standards" to "a fragmented patchwork of state laws." A CFTC spokesperson told Axios the agency had engaged with the league and called it "unfortunate" that the NFL declined to sign a memorandum of understanding of the kind MLB and the NHL have signed. A person familiar with the agency's thinking put it more bluntly: the NFL is trying to regulate the regulator.
Why the NFL is alone among the big leagues
The brief breaks the NFL away from its peers. MLB named Polymarket its exclusive prediction market partner earlier this year and signed an MOU with the CFTC. The NHL has licensing deals with both Kalshi and Polymarket and its own CFTC MOU. MLS signed with Polymarket in January. The NFL has none of these, and no NFL team has a marketing deal with an exchange, while several MLB clubs have signed with Kalshi, Polymarket or Novig. Commissioner Roger Goodell told CNBC last month the league wants "stronger regulations" before it would partner with an exchange, while still calling them "potential partners". We tracked the partnership map in Does the NFL have a deal with Kalshi or Polymarket?
The brief's own volume figure explains why the NFL cares more than the others. It says that on the first Sunday of the 2026 season, $1.8bn of the $3.3bn traded across prediction markets was on NFL events, about 55% of everything traded that day. The Block, citing league figures, puts the share at "nearly $2 billion". Either way, the NFL is the product, which makes the asymmetry in who is signing MOUs less surprising than it first looks. There is a footnote the brief does not dwell on: DraftKings, FanDuel and Fanatics, the three operators that do follow the league's prohibited-wager list as sportsbooks, all now run prediction market products of their own, including in states where they hold no sports betting licence.
Does the brief change the odds of a cert grant?
Florida gaming lawyer Daniel Wallach called it "an important amicus brief that meaningfully increases the chances of a cert grant", and told the Global Gaming Expo this week that, if the Court does take the case, he puts the states' chances of winning at 70% to 80%. His best-case calendar is a grant in December or January, argument in March or April and a decision by the end of June 2027. ESPN's reporting is that the justices are unlikely to consider the petition before December at the earliest, which fits the 9 November response date plus the usual distribution time. If the petition is not granted by early 2027, a merits ruling slides to 2028 and the NFL's stated goal of a decision before the 2027 season is gone.
Two things cut the other way. Kalshi has asked the Ninth Circuit for rehearing, which would make the split look less settled, although Wallach rates the chance as "minuscule". And Robinhood, which sought review of the Ninth Circuit ruling, has argued against immediate review because the CFTC's pending rules could change the landscape; the CFTC is making the same ask of lower courts. The NFL's brief is, in part, an answer to that: a league that has spent 2026 asking the CFTC for rules and getting none is saying that waiting for the agency is not a plan.
Method and limits
Docket entries and dates are from the Supreme Court's public docket for No. 26-299, retrieved on 9 October 2026. The contents of the NFL brief are as reported by Legal Sports Report, Covers, Axios, The Block and Reason on 8 October; we have not obtained the filed PDF, and quotations attributed to the brief are as those outlets reported them. Staffing figures and the state comparisons are the brief's and Legal Sports Report's. The $1.8bn and $3.3bn first-Sunday figures are the league's; we have not seen the underlying venue data. Wallach's probabilities are one lawyer's estimate, not a market price. This page is not legal advice.
Frequently asked questions
What did the NFL file with the Supreme Court?
An amicus brief, filed on 8 October 2026 in Flaherty v. KalshiEX, No. 26-299, supporting New Jersey's petition for certiorari. The NFL argues that sports event contracts are gambling rather than swaps, that the Sixth and Ninth Circuits got it right, and that the Court should take the case before the 2027 season.
Is the NFL trying to ban prediction markets?
No. The brief does not ask the Court to stop Kalshi or Polymarket listing football contracts. It asks that they be regulated the way licensed sportsbooks are, including a 21+ age floor, adoption of the league's prohibited-wager list and prohibited-bettor lists, and state-level oversight.
When will the Supreme Court decide whether to hear the Kalshi case?
Kalshi's response to New Jersey's petition is due on 9 November 2026 after an extension. The justices are unlikely to consider the petition before December. If they grant it around the turn of the year, argument would follow in spring and a decision by the end of June 2027; if they do not, a ruling is unlikely before 2028.
Why does the CFTC's headcount matter to the NFL's argument?
The brief says the CFTC had 543 employees as of September 2025, roughly a quarter fewer than when the Trump administration took office, and compares that with the gaming boards of Pennsylvania and Nevada, which each employ close to 400 people for a single state. The NFL's point is that a national regulator with that staff cannot police integrity the way state regulators do.
How did Kalshi, Polymarket and the CFTC respond?
Kalshi said it is committed to game integrity and pointed to its MLB and NHL partnerships. Polymarket said it shares the league's integrity goal but prefers consistent national standards to a patchwork of state laws. A CFTC spokesperson said the agency had engaged with the league and called it unfortunate that the NFL declined to sign a memorandum of understanding.
Sources
- Supreme Court of the United States, Docket No. 26-299, Flaherty v. KalshiEX, LLC, retrieved 9 October 2026.
- Legal Sports Report, NFL tells Supreme Court sports contracts are not swaps, 8 October 2026.
- Axios, NFL blasts prediction markets over "integrity" concerns in Supreme Court brief, 8 October 2026.
- Covers, NFL calls for Supreme Court ruling on prediction markets, 8 October 2026, and Supreme Court could rule on sports prediction markets by June 2027, 7 October 2026.
- The Block, NFL tells Supreme Court prediction market sports contracts are gambling, not swaps, 8 October 2026.
- Reason, The NFL wants states, not the CFTC, to regulate sports prediction markets, 8 October 2026.
18+ only. This page reports court filings, public statements and published figures. It is not legal, financial or betting advice. If gambling stops being fun, help is available at 1-800-GAMBLER.