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NFL tells the Supreme Court sports contracts are gambling
"But now a new form of sports betting has emerged that undermines these efforts and threatens game integrity: sports betting on prediction markets," the National Football League wrote. The line comes from a 32-page amicus brief filed on October 8, 2026, which puts NFL contracts at $1.8 billion of the $3.3 billion traded on prediction markets on the first Sunday of the 2026 season and asks the Supreme Court to hear New Jersey's petition.
The case is Flaherty v. KalshiEX, LLC, No. 26-299. New Jersey filed on September 2, 2026, and the Court docketed the petition on September 8. Petitioners are Attorney General Jennifer Davenport and Mary Jo Flaherty, interim director of the Division of Gaming Enforcement. A New York judge had already refused Kalshi an injunction against state enforcement on July 7, 2026.
A swap hedges risk. A game contract creates it.
Under the brief's reading, the 2010 Dodd-Frank Act did not pre-empt state sports-betting law through one definition of a swap. A swap hedges a risk the parties already hold. A sports contract creates one. The league writes that sports-related event contracts "are not naturally considered swaps" under the Commodity Exchange Act.
That league was a plaintiff-respondent in Murphy v. NCAA, 584 U.S. 453 (2018), arguing for a federal bar on state-authorised bets. It wants the opposite result now.
The Third Circuit's April holding and the two that rejected it
On April 6, 2026, the Third Circuit in KalshiEX, LLC v. Flaherty, 172 F.4th 220, held that Kalshi's sports-related event contracts sit inside the Commodity Futures Trading Commission's exclusive jurisdiction over swaps on a designated contract market. Field pre-emption, that panel said, blocks New Jersey's gambling statutes on those contracts.
Two later judgements went the other way. On August 28, 2026, the Ninth Circuit in KalshiEX, LLC v. Assad said the contracts do not meet the statutory definition of a swap. On September 25, 2026, the Sixth Circuit in KalshiEX LLC v. Schuler said the same.
The Supreme Court file since September 2 holds amici briefs, not a grant of review.
- September 2, 2026: New Jersey files for certiorari. The Court dockets it on September 8 as No. 26-299.
- September 18, 2026: Neal Kumar Katyal of Milbank asks for 30 more days to oppose the petition.
- September 22, 2026: The Court extends Kalshi's response to November 9, 2026.
- October 7, 2026: Ohio, 38 other states and the District of Columbia file for the petitioners.
- October 8, 2026: The NFL files, the same day as the American Gaming Association, 145 tribal organisations and former CFTC chairman Gary Gensler.
Age 21, four contract types and a staff of 543
State authorities generally set 21 as the minimum age for a sports wager. The Commission has not copied that floor, the brief says, and still allows 18-year-olds to trade sports contracts. In almost every state, an 18-year-old kept off Caesars Sportsbook, a state-licensed book, can still trade the same game on Kalshi.
On May 15, 2026 the league asked the Commission, commenting on a March 16 advance notice, to bar four kinds of contract: those one person can move, those it calls objectionable, those that turn on an official's discretion, and those knowable before settlement. A letter on July 27, 2026 said rules proposed on June 12 "fall significantly short of protecting the integrity of sports events and the fans who participate in these markets."
A contract can be self-certified under 17 C.F.R. § 40.2 and opened the next business day. The brief puts staff at 543, citing executive director Jeffrey Sutton's memo of September 29, 2025, against close to 400 gambling employees in Nevada and in Pennsylvania. The filing does not turn that chart into a reading of the statute.
Licensed books are the businesses in the same docket
Ohio led the brief of 39 states and the District of Columbia, filed on October 7, 2026. DraftKings and FanDuel had already left the American Gaming Association over prediction markets, and that body filed on October 8. If the contracts are swaps, the 21-year floor never reaches the exchange.
"Contrary to the NFL's statements, Kalshi is actively policing sports-related markets," the company wrote. "We hope they change their position and start engaging to help the integrity of sports." (iGaming Business, October 9, 2026.) Counsel of record on the NFL brief is Cody L. Reaves of Torridon Law, with former US Attorney General William P. Barr on the signature block.
Nothing on the docket grants review. Kalshi's brief in opposition is due on November 9, 2026, the date the Court set on September 22. If the justices later adopt the Third Circuit's reading, the league says it will press the Commission, the exchanges and Congress for those safeguards before the 2027 season.
This article is informational analysis only and is not betting advice.
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Nine-year crypto and forex veteran covering token analysis, prediction markets, and blockchain-based gambling infrastructure. Founder, writer, and consultant specialising in the intersection of digital assets and iGaming.
