NFL and 39 states back New Jersey's Supreme Court bid against Kalshi

The National Football League has thrown its weight behind New Jersey's effort to get the US Supreme Court to hear its case against prediction market operator Kalshi, filing an amicus brief on Thursday. A day earlier, attorneys general from 39 states and the District of Columbia, led by Ohio, filed their own brief making a similar case, according to SBC Americas.

Both filings centre on the same argument: that federal commodities law does not give prediction markets the power to bypass state sports betting regulation. The briefs follow others submitted earlier in the week by the International Association of Gaming Regulators and the North American Gaming Regulators Association, as well as a joint filing from the American Gaming Association and 145 tribes and tribal organisations.

New Jersey asked the Supreme Court in September to take up its case against Kalshi. Josh Kirschner, a partner at Holland & Knight and deputy team leader of its gaming practice, said the heavy focus on states' rights in both new briefs signals that the NFL and the state coalition see it as their strongest line of attack.

Kirschner also pointed to the timing as a sign both parties believe the case is ready for the justices. He said the odds have risen that the Court will take up the Third Circuit petition, with oral argument potentially coming before the end of the school year. He described that as roughly the fastest plausible timeline, adding that a fully briefed argument in 2027 now looks increasingly likely.

The NFL's position marks a reversal from its role in Murphy v. NCAA, the 2018 Supreme Court ruling that struck down the federal sports betting ban under the Professional and Amateur Sports Protection Act. The league had fought New Jersey for six years as a plaintiff in that case, a history it acknowledges in a footnote to its new brief. It now wants the Court to shield the same state authority it once tried to block.

The league's brief, filed by Torridon Law — whose team includes former US Attorney General William Barr — says protecting game integrity has been its top priority since Murphy, achieved by working with licensed sportsbooks and state regulators under rules prediction markets do not follow. It accuses the Commodity Futures Trading Commission and exchanges such as Kalshi of having resisted requests for safeguards.

In letters sent to the CFTC in May and July, the NFL asked the regulator to bar four categories of contracts: those a single individual could manipulate, such as a missed field goal; those it considers inherently objectionable, such as player injuries; those tied to officiating decisions like penalty calls; and those with outcomes knowable in advance, such as whether the opening play is a run or a pass.

The league called the CFTC's inaction last month 'deeply concerning,' and this week's brief says the agency has not banned any of the four categories, with its proposed rules failing even to mention the knowable-in-advance concern.

The NFL's filing also flags an age gap: most states set the sports betting minimum at 21, while prediction markets allow 18-year-olds to trade. It further contrasts CFTC staffing of 543 employees nationwide with gaming regulators in Nevada and Pennsylvania, which each employ close to 400 people. The brief notes that on the first Sunday of this NFL season, $1.8 billion of the $3.3 billion traded across prediction markets was tied to league games, and it urges the Court to act before another season passes.

The NFL aligned itself with the Sixth and Ninth Circuits' view that a 'swap' under the Dodd-Frank Act applies only to instruments hedging existing risk, not sports wagers. The league told Front Office Sports it is not opposed to prediction markets generally, and said that if the Court sides with the Third Circuit, it would intensify engagement with the CFTC, exchanges and Congress ahead of the 2027 season.

The states' brief takes a sharper tone, describing federal and state courts as hopelessly confused and divided on the issue and characterising the dispute as a regulatory turf war with the CFTC, which it says has sued at least nine states over their enforcement actions. It argues the preemption claim rests on a narrow subsection of a federal financial reform law passed after the 2008 mortgage crisis, and says Kalshi cannot strip states of their sovereign power through relabelling and window-dressing.

The coalition includes attorneys general from both parties, among them California, New York, Michigan, Nevada and Missouri alongside lead state Ohio. It notes that similar coalition briefs have already been filed in the Third, Fourth, Sixth and Ninth Circuits, and before the Massachusetts Supreme Judicial Court, and that 44 states opposed the CFTC's proposed prediction market rules.