American Gaming Association backs New Jersey petition against Kalshi

Roger Goodell did not file the brief himself, but his name sits behind every argument in it. The NFL submitted its amicus filing Thursday in Flaherty v. KalshiEX, joining the American Gaming Association, 145 tribal governments, and two former federal officials in asking the Supreme Court to take up New Jersey's challenge to Kalshi's sports event contracts.

The brief's core argument is narrow and deliberately historical. When Congress passed Dodd-Frank in 2010, sports betting was federally prohibited. The league argues it is therefore inconceivable that legislators responding to the 2008 financial crisis silently handed commodities regulators nationwide authority over sports wagering. A swap, the brief contends, is an instrument created to hedge preexisting risk. A contract on whether a kicker makes a field goal creates risk. It does not manage it.

Kalshi's spokeswoman Elisabeth Diana pushed back promptly, pointing to the company's partnerships with the NHL and MLB and the CFTC's active rulemaking as evidence that federal oversight already addresses integrity concerns. The CFTC under the current administration has filed suit against multiple states attempting enforcement, maintaining that its jurisdiction is exclusive. That position held in the Third Circuit in April, when the Philadelphia court found that Kalshi's contracts likely qualify as swaps and that federal law likely preempts New Jersey's statutes.

The Third Circuit remains Kalshi's only appellate win. The Sixth Circuit allowed Ohio to enforce state gambling laws. The Ninth Circuit, ruling in August, reached the same conclusion on Nevada's behalf. The same product, listed by the same federally registered exchange, is shielded from state authority in one circuit and subject to it in two others. Gaming attorney Daniel Wallach has suggested the Court could resolve the split by June 2027. That timeline assumes the justices grant certiorari, which is not certain, though the coalition now urging them to do so spans the NFL, the AGA, tribal gaming interests, and the two principal international gaming regulator associations.

The NFL's position is textured in a way the reporting has not quite caught. The league is not opposing prediction markets. Goodell said as much to CNBC. What the league is opposing is prediction markets operating outside the integrity framework that governs its three primary betting partners — Fanatics, FanDuel, and DraftKings — all of which follow the NFL's prohibited-wager list and operate under state licensing regimes. All three also now offer prediction markets, including in states without regulated sports betting. The NFL is effectively asking the Court to force its own partners' newer product lines into the same regulatory box as their older ones.

That structural tension inside the league's own commercial relationships is where the analysis gets interesting. The NFL has financial incentives running in opposite directions on this question, which makes its choice to file — and to file on the states' side — a more committed signal than a pure integrity argument would suggest. Goodell wants leverage over prediction market operators that he currently does not have. The Supreme Court petition is one way to get it.

The consensus read is that the Court's decision to grant or deny certiorari is the pivotal moment. Having checked that instinct against the actual record: in this case, the consensus is correct. The circuit split is genuine, the coalition is broad, and the question presented is one the Court cannot indefinitely defer. The market on Supreme Court review taking up this case is underpriced for the strength of the petition.