New Jersey has thrown down a legal gauntlet that could reshape how the entire country treats online betting on sports outcomes. The state’s attorney general asked the U.S. Supreme Court last week to settle a question that has split federal appeals courts and rattled a fast-growing industry: are sports-linked prediction markets gambling products subject to state law, or federally sanctioned financial instruments beyond states’ reach? The answer will determine whether platforms like Kalshi can keep operating nationwide under a single federal framework, or whether they’ll need to play by the same rules as traditional sportsbooks in every state where they take action. This fight over prediction markets regulation has been building for more than a year, and it just reached the doorstep of the nation’s highest court.
Key takeaways
- New Jersey has petitioned the U.S. Supreme Court to rule on whether sports-related prediction markets are gambling products or federally regulated swaps.
- A circuit split between the Third Circuit and Ninth Circuit Courts of Appeals has raised the odds that the justices will take the case, though nothing is guaranteed.
- If the markets are ruled gambling, companies must secure state licenses and pay state taxes; if ruled swaps, CFTC oversight would preempt most state control.
- The Supreme Court has roughly 90 days to decide whether to grant certiorari, and Kalshi would have 30 days to respond once the petition is docketed.
- Separately, the Digital Asset Market Clarity Act is unlikely to become law before the midterms, even though the National Sheriffs’ Association just softened its opposition.
U.S. Supreme Court weighs regulation of sports prediction markets
The core question before the justices is whether federal law shields companies like Kalshi from having to follow state gambling statutes when they offer sports-related contracts. New Jersey Attorney General Jennifer Davenport filed the state’s writ of certiorari, arguing that “companies like Kalshi claim to offer legal sports betting in all 50 states, but they refuse to follow the gambling laws of any state,” according to a statement from her office. The petition frames the stakes bluntly, telling the Supreme Court that Kalshi “seeks to federalize the multi-billion-dollar sports betting industry at the expense of every state sports gaming law.”
New Jersey wasn’t required to wait for a split to appeal the Third Circuit’s April ruling, which found that sports event contracts meet the legal definition of swaps and fall under the CFTC‘s exclusive jurisdiction. But the emergence of a conflicting appellate decision gave the case new momentum, according to Carl Kennedy, a partner at the law firm Katten who co-chairs its financial markets and regulation group. Last month, the Ninth Circuit Court of Appeals reached the opposite conclusion in a separate case involving Nevada, ruling that labeling a sports wager a “swap” doesn’t change what it actually is. Ninth Circuit Judge Ryan Nelson wrote that “placing sports bets, even when called by another name, is still gambling,” while Judge Kenneth Lee questioned whether the outcome of a single game carries the kind of financial or commercial consequence that Congress had in mind when it defined swaps under the Dodd-Frank Act.
That disagreement between circuits is exactly what the Supreme Court typically looks for before agreeing to weigh in. New Jersey’s petition itself argues the split “has tremendous importance, as it will determine whether a multi-billion-dollar gaming industry can suddenly operate free from state sports-gaming laws.” Katherine Kirkpatrick Bos, head of legal at Chainlink Labs, said the Supreme Court doesn’t publicly explain why it grants or denies review, but it’s more likely to step in when there’s a circuit split combined with a nationally significant question — and here, she noted, “we have litigation which is materially affecting an entire industry’s business model.” According to New Jersey’s filing, similar disputes have surfaced in at least 20 states, with dozens of active lawsuits pending and several state gambling laws currently blocked by federal courts.
Implications of classification as gambling vs. swaps
Whichever way the Supreme Court eventually rules will reshape who regulates sports-adjacent prediction markets and how companies operate across state lines. If a majority of justices decide these products are simply gambling, every company offering them will need to obtain licenses in each state where it does business and pay the applicable state taxes. That outcome would put platforms like Kalshi on the same footing as traditional sportsbooks, undoing the regulatory shortcut that has let prediction markets expand rapidly without securing state-by-state approval.
If markets are ruled gambling products
Under this scenario, states regain the authority they’ve long claimed over sports wagering. New Jersey specifically prohibits betting on college sports and has been unable to enforce that ban against Kalshi under the current legal landscape. A ruling favoring states would let New Jersey and others close that gap immediately.
If markets are ruled federally regulated swaps
The opposite outcome carries its own weight. If the justices agree these contracts are swaps properly overseen by the CFTC, states would lose much of their ability to police sports-related prediction markets, and companies would answer primarily to federal regulators rather than a patchwork of state gambling boards. New Jersey has warned that such a result would create an odd contradiction: if Dodd-Frank truly federalized sports wagering regulation, the state also argues that CFTC jurisdiction over swaps is exclusive only relative to other federal agencies, not to the states themselves.
Ongoing regulatory and legislative context
Two separate but related regulatory processes could still influence when and how the Supreme Court acts. The CFTC is in the middle of revising its rules on event contracts, and that unfinished rulemaking gives the justices a reason to potentially wait before jumping in.
CFTC’s revised rules on event contracts
Daniel Wallach, a legal practitioner focused on gaming and sports betting law, said the Supreme Court might hold off if it wants the CFTC to finalize its proposal on event contracts first. Whatever rule the agency ultimately adopts will likely face a challenge under the Administrative Procedures Act, Wallach said, which could signal to the justices that the underlying issue simply isn’t ready for review yet. Adding to the uncertainty, further circuit court rulings — potentially from the Sixth Circuit or Fourth Circuit — could give the Supreme Court additional signals about how lower courts are trending. Todd Phillips, a director at the Klaros Group, said that if those circuits side with New Jersey while the Third Circuit remains the outlier, that pattern itself becomes useful information for the high court as it decides whether and when to act.
Digital Asset Market Clarity Act stalls in Congress
Separately, momentum has stalled on the Digital Asset Market Clarity Act, legislation that touches broader digital-asset oversight. The U.S. House of Representatives won’t be in session for the final two weeks of September, which all but guarantees the bill won’t become law before the midterm elections even if the Senate manages to pass it this month. There was one notable shift, though: on Friday, the National Sheriffs’ Association told Senate leadership in a letter that it was moving from opposing the bill to a neutral stance, clearing one obstacle. Other sticking points remain unresolved, including unsettled ethics provision negotiations and continued debate over how the bill treats stablecoin yield. Industry executives themselves appear split on the bill’s prospects, with CEOs interviewed roughly divided 50/50 on whether it has a real chance of passing.
Legal expert perspectives and Supreme Court outlook
History offers New Jersey a modest reason for optimism, though nothing close to a guarantee. Wallach pointed out that the Supreme Court reverses lower court rulings roughly 70% of the time, a pattern that could favor states challenging the Third Circuit’s decision if the case is heard.
What comes next for states and companies
Procedurally, the Supreme Court now has about 90 days to decide whether to grant certiorari, Kennedy said, while Kalshi would have 30 days from when the petition is officially docketed to respond. If the court agrees to hear the case, the first round of briefing would focus narrowly on whether review is warranted at all — only after that would the parties argue the underlying merits. New Jersey also isn’t locked into the arguments it raised during its original fight with Kalshi at the district court level; Kennedy noted the state can incorporate points raised in any of the many other pending prediction market cases nationwide. That flexibility grows even more relevant if multiple appellate cases end up consolidated, according to Phillips, and Wallach expects the various states and companies involved in parallel litigation to each want their arguments heard directly by the justices. The Trump administration has already backed Kalshi in its fights against states, with the CFTC itself filing suits against state regulators — a dynamic complicated by the fact that all three Ninth Circuit judges who ruled against Kalshi were Trump appointees, suggesting the political and judicial lines here don’t run in any predictable direction.
FAQ
What is the core legal issue the U.S. Supreme Court may review regarding prediction markets?
Whether sports-related prediction markets are gambling products regulated by states or federally regulated swaps overseen by the Commodity Futures Trading Commission.
Why is there a circuit court split influencing Supreme Court interest?
The Third Circuit ruled these are swaps under federal regulation, while the Ninth Circuit ruled they are gambling, creating conflicting legal interpretations.
What happens if the Supreme Court classifies these markets as gambling products?
Companies offering sports-related prediction markets would need to comply with state gambling licenses, approvals, and pay relevant taxes.
How might ongoing CFTC rule revisions affect the Supreme Court case?
The Court might delay taking the case until the Commodity Futures Trading Commission finalizes revised rules regarding event contracts.
Article produced with the assistance of artificial intelligence and reviewed by the editorial team.
