The National Football League, alongside attorneys general from 39 states and the District of Columbia, submitted amicus briefs this week advocating for the U.S. Supreme Court to review New Jersey's case against Kalshi. The NFL filed its brief on Thursday, while the states, led by Ohio, submitted theirs the day before.
Both briefs contend that federal commodities law does not supersede state sports betting laws when it comes to regulations on sports event contracts. These filings come in response to earlier briefs from the International Association of Gaming Regulators (IAGR) and the North American Gaming Regulators Association (NAGRA).
Additionally, the American Gaming Association collaborated with 145 tribes and tribal organizations to back New Jersey's position this week.
New Jersey initiated its petition for the Supreme Court to take up the case in September.
Josh Kirschner, a partner at Holland & Knight and deputy team leader of their gaming practice, commented, "The NFL and attorneys general both focus heavily on the states' rights portion. It signals both of them believe it is a winning argument at the Supreme Court."
Kirschner observed that the timing suggests a mutual belief in the urgency of New Jersey's case, stating that the chances are now significantly higher for the Court to consider the Third Circuit petition, with potential oral arguments occurring before summer break. "That’s about as expedited as I could see," he noted, possibly pointing to the fall term or an argument fully briefed by 2027.
The NFL, now a supporter of New Jersey, contrasts with its role as a plaintiff in the long legal battle over the Professional and Amateur Sports Protection Act (PASPA). This conflict culminated in the 2018 Murphy v. NCAA ruling that invalidated the federal prohibition on sports betting, allowing states to legalize it. Presently, the NFL is requesting the Court to uphold New Jersey's authority to regulate sports betting, the very activity the league once sought to restrict.
Acknowledging this history, the NFL noted in a footnote that it "was a Plaintiff–Respondent in Murphy alongside other leagues and the NCAA." According to the brief, since that landmark ruling, the NFL's "very top priority" has been to safeguard the integrity of its games by collaborating with state regulators and licensed sportsbooks, unlike the prediction markets.
The brief was filed by Torridon Law, which includes former U.S. Attorney General William Barr among its team. It highlighted that the Commodity Futures Trading Commission (CFTC) and exchanges like Kalshi have not complied with the league's calls for protective measures.
The NFL's concerns to the CFTC in May and July included requests to ban several contract types:
1. Those vulnerable to manipulation, such as predictions on whether a kicker will miss a field goal.
2. Contracts that are inherently objectionable, such as those related to player injuries.
3. Contracts related to officiating, including penalties.
4. Contracts whose outcomes are predetermined, like whether the first play will be a run or a pass.
The league expressed that the CFTC's inaction is "deeply concerning," emphasizing that none of the proposed rules address the "knowable in advance" category of contracts.
Moreover, the NFL pointed to age restrictions and staffing disparities. In most states, sports bettors must be at least 21 years old, yet prediction markets allow 18-year-olds to participate. The brief highlighted that an 18-year-old could not place bets through Caesars Sportsbook, yet could do so through Kalshi.
Regarding staffing, the NFL noted the CFTC employs 543 staff members nationwide, while regulators in Nevada and Pennsylvania each have around 400.
The NFL's brief also demonstrated the league's substantial influence within prediction markets, stating that on the first Sunday of the season, $1.8 billion of the $3.3 billion traded across these markets was linked to NFL games. The league urged the Court to act "before another NFL season goes by."
The NFL aligned itself with the Sixth and Ninth Circuits, asserting that swaps under the Dodd-Frank Act pertain solely to risk-hedging instruments and do not encompass sports wagers. The NFL clarified to Front Office Sports that it does not oppose prediction markets in general.
Should the Court side with the Third Circuit's decision, the NFL indicated it would intensify its efforts with the CFTC, exchanges, and Congress before the 2027 season.
The states' brief expressed stronger views, indicating that both federal and state courts are "hopelessly confused and divided." It pointed to a "regulatory turf war" with the CFTC, which has sued at least nine states for their enforcement actions.
The preemption argument concerning prediction markets relies on a specific section of a federal financial reform bill enacted following the 2008 mortgage crisis. The states contended that Kalshi cannot strip them of their essential sovereign powers through rebranding.
Attorneys general from both major political parties, including those from California, New York, Michigan, Nevada, and Missouri, united with Ohio in this effort. The brief highlighted that states have filed similar coalition briefs in the Third, Fourth, Sixth, and Ninth Circuits and the Massachusetts Supreme Judicial Court.
Furthermore, 44 states have expressed opposition to the CFTC's proposed rules for prediction markets, stressing that "almost all the nation’s States have spoken with one voice on the matter."
The case emerged in 2025 when New Jersey's Division of Gaming Enforcement sent Kalshi a cease-and-desist letter, prompting Kalshi to initiate a lawsuit. In April 2025, U.S. District Judge Edward Kiel granted a preliminary injunction preventing the state from enforcing its laws. The Third Circuit issued a divided opinion in April 2026, upholding the injunction and determining that Kalshi's sports contracts likely fall under the CFTC's exclusive jurisdiction, suggesting federal law could preempt New Jersey’s regulations.
After Justice Samuel Alito granted two deadline extensions, New Jersey filed its petition, with Kalshi's response due on November 9.
Currently, the Third Circuit is the only federal appeals court that has sided with Kalshi. The Ninth Circuit ruled in favor of Nevada in August, applying similar reasoning to tribal gaming laws the following month. The Sixth Circuit also sided against Kalshi last month, determining that it failed to demonstrate that its contracts are swaps, and indicating that even if they were, federal law would not supersede state gambling regulations.
Crypto.com and Robinhood have requested the Court to review the Ninth Circuit's decision regarding the Nevada case. Although the Court commenced its new term this week, the prediction markets issue did not feature among the cases slated for review.
