NFL argues Congress could not have legalized sports bets in 2010

Roger Goodell told CNBC last month that the NFL wants stronger regulations before it will partner with a prediction market operator. That sentence, quiet as it is, carries more weight than most of what has been filed in this case.

The league submitted an amicus brief Thursday backing New Jersey's petition to bring its fight with Kalshi before the Supreme Court. The brief's central argument is textual: Dodd-Frank's definition of a swap reaches only instruments created to hedge preexisting risk. A sports event contract, the NFL argues, does the opposite. It creates risk. Nobody held a position in the Kansas City Chiefs before they bought the contract.

The brief then makes a contextual argument that I find more interesting than the textual one. When Congress passed Dodd-Frank in 2010, federal law still prohibited sports betting nationwide. The NFL's position is that it is inconceivable Congress, responding to a financial crisis, quietly enabled nationwide sports betting by classifying it as swap activity. That is not a frivolous reading. Statutory interpretation routinely asks what a legislature could plausibly have intended given what it knew at the time. In 2010, nobody was calling a sports bet a swap. The category didn't exist yet.

The Third Circuit disagreed with this logic in April, blocking New Jersey from enforcing state gambling laws against Kalshi. The Sixth and Ninth Circuits went the other way, permitting Ohio, Tennessee, California, and Nevada to act. That split is now the circuit split the Supreme Court was eventually going to have to resolve anyway. The NFL's brief doesn't create the legal emergency — it sharpens the argument for why the Court should take the case now rather than let the conflict metastasize further.

Where I think the reporting undersells the NFL's position is on the integrity question. The league is partnered with Fanatics, FanDuel, and DraftKings, all three of which operate prediction markets, including sports contracts in states without regulated betting. The NFL lives with that because those operators follow the league's prohibited wagers list. The brief asks directly whether Kalshi can uphold the same guidelines under what it calls a lean CFTC staff. That is a pointed question, and nobody has answered it on the record.

I am generally skeptical of incumbents who invoke integrity concerns when they are also protecting market position. That skepticism is a bias I carry and I am flagging it here, because in this case I think the integrity argument is doing some genuine work, not just incumbent work. The prohibited wagers framework exists because certain bet types — player props on injury, for instance — are structurally susceptible to manipulation in ways that game-level bets are not. Whether the CFTC has the staffing and mandate to enforce equivalent protections is a real operational question, not a rhetorical one.

My read is that the Supreme Court takes this case. The circuit split involves too many states and too much volume to leave unresolved through attrition. The NFL's brief adds political texture to what was already a strong cert petition from the states — it signals that the sports property rights holders, not just the gambling regulators, view federal preemption as a threat to market structures they have spent years building. That combination of state authority and private industry interest is the kind of alignment that moves dockets.