The National Football League and attorneys general from 39 states and the District of Columbia filed amicus briefs this week urging the U.S. Supreme Court to hear New Jersey‘s case against Kalshi.
The NFL filed its brief on Thursday. The states’ brief, led by Ohio, came Wednesday.
Both argue that federal commodities law does not override state sports betting laws to regulate sports event contracts. The pair of briefs follow a set filed earlier this week by the International Association of Gaming Regulators (IAGR) and the North American Gaming Regulators Association (NAGRA).
The American Gaming Association joined 145 tribes and tribal organizations in submitting briefs in support of New Jersey this week.
Is New Jersey the Kalshi case that goes?
New Jersey filed its petition asking the Supreme Court to take the case in September.
“The NFL and attorneys general both focus heavily on the states’ rights portion,” Josh Kirschner, Holland & Knight partner and gaming practice deputy team leader, said. “It signals both of them believe it is a winning argument at the Supreme Court.”
Kirschner also noted the timing suggests both filers believe the New Jersey case is ripe. He said the “odds now are much higher” that the Court will pick up the Third Circuit petition and could be at oral argument “before schools let out for summer break.”
“That’s about as expedited as I could see, maybe fall term, but it’s a higher and higher likelihood of a fully briefed argument in 2027,” he said.
NFL: from PASPA opponent to states’ ally
The NFL is a notable partner for New Jersey, as the league was among the plaintiffs that fought the state for six years over the Professional and Amateur Sports Protection Act (PASPA). That fight ended with Murphy v. NCAA in 2018, when the Supreme Court struck down the federal ban and opened the door to legal sports betting. Now the NFL is asking the Court to protect New Jersey’s authority to regulate the same activity it once tried to stop.
The NFL acknowledges the history in a footnote, noting that it “was a Plaintiff–Respondent in Murphy alongside other leagues and the NCAA.” Since that ruling, the brief said the league’s “very top priority” has been protecting the integrity of its games. It says it does that by working with state regulators and licensed sportsbooks on rules that prediction markets do not follow.
Torridon Law, whose team includes former U.S. Attorney General William Barr, filed the league’s brief. It says the Commodity Futures Trading Commission (CFTC) and exchanges such as Kalshi have “so far resisted” its requests for safeguards.
In letters to the CFTC in May and July, the NFL asked the agency to ban four kinds of contracts:
- What a single person could manipulate, such as whether a kicker misses a field goal
- What the league considers inherently objectionable, such as those tied to player injuries
- Anything tied to officiating, such as the number or type of penalties
- Markets whose outcome is knowable in advance, such as whether the first play will be a run or a pass
Last month, the league said the CFTC ignoring the asks is “deeply concerning.” This week’s brief said the CFTC has not banned any of those categories outright. It added that the agency’s proposed rules do not mention the “knowable in advance” category.
Brief: prediction markets have age, staffing issues
The NFL also raised age limits and staffing issues. Most states require sports bettors to be 21, but prediction markets accept 18-year-olds. As a result, the brief said an 18-year-old in almost every state “could not bet on a game through Caesars Sportsbook, but could bet on the same game through Kalshi.”
On staffing, it noted that the CFTC has 543 employees nationwide, while Nevada and Pennsylvania gaming regulators each have close to 400.
The brief showed how much of this market depends on the NFL. On the first Sunday of the season, $1.8bn of the $3.3bn traded across prediction markets was tied to NFL games. The league asked the Court to act “before another NFL season goes by.”
The NFL sided with the Sixth and Ninth Circuits, arguing that a “swap” under the Dodd-Frank Act covers only instruments used to hedge existing risk, not sports wagers. The NFL told Front Office Sports it does not oppose prediction markets as a whole.
If the Court agrees with the Third Circuit, the NFL said it would “redouble” its efforts with the CFTC, the exchanges and Congress before the 2027 season.
States weigh in on prediction markets
The states’ brief described the situation more strongly. It said federal and state courts are “hopelessly confused and divided.”
It also said the states are in a “regulatory turf war” with the CFTC, which it noted sued at least nine states over their enforcement efforts.
The prediction markets’ preemption argument depends on “a subsection of a section of a federal financial reform bill passed in the wake of the 2008 mortgage crisis,” the brief said. It argued Kalshi cannot “strip the States of their core sovereign power through relabeling and window-dressing.”
Attorneys general from both parties, including those in California, New York, Michigan, Nevada and Missouri, joined Ohio. The brief said states have filed similar coalition briefs in the Third, Fourth, Sixth, and Ninth Circuits, as well as the Massachusetts Supreme Judicial Court.
It also noted that 44 states opposed the CFTC’s proposed prediction market rules.
“That almost all the nation’s States have spoken with one voice on the matter should be enough,” it said.
How New Jersey got here
The case began in early 2025 when New Jersey’s Division of Gaming Enforcement sent Kalshi a cease-and-desist letter, and Kalshi sued.
In April 2025, U.S. District Judge Edward Kiel granted Kalshi a preliminary injunction blocking the state from enforcing its gaming laws.
A divided Third Circuit panel upheld that injunction in April 2026. It found Kalshi’s sports contracts are likely swaps under the CFTC’s exclusive jurisdiction and that federal law likely preempts New Jersey’s laws.
After two deadline extensions from Justice Samuel Alito, New Jersey filed its petition. Kalshi’s response is due Nov. 9.
Widening court split on prediction markets
The Third Circuit is still the only federal appeals court to side with Kalshi.
The Ninth Circuit ruled for Nevada in August and applied the same reasoning to tribal gaming law in September.
The Sixth Circuit sided with Ohio and Tennessee last month, holding that Kalshi had not shown that its contracts are swaps and that federal law would not preempt state gambling laws even if they were.
Crypto.com and Robinhood have asked the Court to review the Ninth Circuit’s ruling in the Nevada case.
The Court began its new term this week, but the prediction markets issue was not among its load of cases.
