In January 2025, Kalshi launched sports event contracts on its federally regulated exchange. Nobody in the prediction market industry had done this before at scale in the United States. Fourteen months later, the sector has generated $44 billion in notional volume, produced a $2.8 billion week around Super Bowl LX, and dragged more than fifty active court cases across multiple federal and state jurisdictions in its wake.
The legal question at the center of all of it is deceptively narrow: does the Commodity Exchange Act preempt state gambling laws when a federally designated exchange offers contracts tied to sports outcomes? The answer will determine whether prediction markets operate as a permanent parallel channel alongside traditional sportsbooks, or whether a compliance convergence forces them under state licensing regimes. Every operator in the space—and every traditional sportsbook watching from the sidelines—should understand exactly where this stands.
Market ContextFrom Zero to $44 Billion in Fourteen Months
The scale of prediction market growth makes the regulatory urgency easy to understand. Kalshi’s revenue compounded from $1.8 million in 2023 to $24 million in 2024 to approximately $260 million in 2025—a compound annual growth rate exceeding 1,100% over two years. Kalshi’s annualized trading volume now exceeds $100 billion, with roughly 90% sports-related, according to figures the CFTC itself cited in its February 2026 amicus brief.
The Super Bowl LX numbers forced the issue into the open. Kalshi reported over $1 billion in trading volume on a single day—February 9, 2026—with the full week reaching a record $2.8 billion. Year-over-year, Super Bowl trading volume was up 2,700%. That single data point turned what had been a regulatory skirmish into an emergency for state gaming authorities whose entire fiscal infrastructure depends on capturing a share of sports wagering volume.
Investor confidence is already baked in at scale. Kalshi and Polymarket carry target valuations of $15 billion and $11 billion respectively following late-2025 funding rounds. Citizens Financial Group projects the sector growing from approximately $2 billion in annual revenue today to $10 billion or more by 2030. The single largest variable in that forecast is the legal outcome of the current jurisdictional dispute.
The Legal Fault LineTwo Words, Fifty Lawsuits: The Statutory Dispute at the Core
The entire jurisdictional war turns on a remarkably small piece of text. CEA Section 1a(47) defines a “swap” as including any agreement tied to “the occurrence, nonoccurrence, or the extent of the occurrence of an event or contingency.” Kalshi’s legal theory is that a contract on the outcome of a sporting event fits squarely within that definition—a game’s outcome is unambiguously “the occurrence of an event.” If sports event contracts are swaps, they fall under CFTC jurisdiction and are governed by federal law.
States counter with a different provision: the CEA’s “gaming exclusion,” which they argue removes from CFTC jurisdiction any agreement that is “gaming or wagering” under applicable state law. The states’ argument is that sports outcome betting is exactly what Congress intended to exclude from commodities regulation—and that allowing CFTC preemption would create a federally sanctioned workaround to every state gaming law in the country.
The CFTC’s preemption theory rests on what lawyers call conflict preemption through structural impossibility. Designated contract markets (DCMs)—the federal category under which Kalshi operates—are required by federal law to provide “impartial access” to all eligible participants nationwide. If individual states can ban those contracts, a DCM is placed in an impossible position: comply with federal access requirements, or comply with state prohibitions. You cannot do both. The CFTC argues this makes state-by-state bans structurally unenforceable against federally registered exchanges.
The stakes of this statutory dispute extend well beyond sports betting. Holland & Knight counted more than 50 active cases as of early 2026 addressing event contract oversight across multiple federal and state jurisdictions. If states prevail, more than 3,000 self-certified event-based contracts across at least 8 DCMs are at risk—an entire federally regulated asset class, not just sports wagering, would be subject to state veto.
Litigation MapA Jurisdiction-by-Jurisdiction Scorecard: Who’s Winning Where
The court record through March 2026 is fractured, which is precisely the problem. Different federal courts are reading the same statute and reaching different conclusions—the textbook condition for Supreme Court review.
| Jurisdiction | Date | Outcome | Significance |
|---|---|---|---|
| Tennessee (federal court) | Feb 19, 2026 | Kalshi wins | Preliminary injunction granted; court ruled a game’s outcome qualifies as “the occurrence of an event” under CEA |
| Nevada (federal court) | Mar 2026 | Kalshi loses (procedural) | Federal court remanded to state court; procedural loss for Kalshi’s preemption argument |
| Massachusetts | Jan 2026 | Kalshi loses | Ruled against Kalshi on the merits |
| Maryland | 2025–2026 | Kalshi loses | Injunction denied |
| Ninth Circuit (Nevada) | Apr 2026 (oral arg.) | Pending | CFTC filed first-ever amicus brief Feb 17, 2026; consolidated argument set for April |
The February 17, 2026 CFTC amicus brief in North American Derivatives Exchange, Inc. v. State of Nevada marks a historic escalation. This was the first time the agency had ever formally intervened in prediction market litigation—a signal that the CFTC is no longer content to let private litigants carry its statutory theory. The agency coordinated with the Department of Justice to file a brief that explicitly endorses the swap definition argument and the impossibility preemption theory.
The coalition arrayed against them is formidable. A total of 37 states plus the District of Columbia filed amicus briefs asserting states’ rights to regulate sports gambling. In the Third Circuit case involving New Jersey, 60 tribal gaming interests and 34 state regulators filed jointly in opposition to Kalshi’s preemption argument. This near-universal state opposition—including Republican-controlled states that might otherwise defer to federal authority—reflects the fiscal stakes involved, not merely ideological disagreement about regulatory philosophy.
The CFTC’s Four-Part Agenda and What It Signals
On January 29, 2026, CFTC Chair Michael Selig announced a four-part regulatory agenda that represents the sharpest possible break from the prior administration’s approach. The agenda has four components: (1) withdraw prior restrictions on event contracts, (2) draft new event contract rules, (3) adopt an aggressive jurisdictional litigation posture, and (4) coordinate with the SEC on a joint interpretation of derivatives definitions.
The withdrawal of the 2024 proposed rule is the most immediately consequential action. Under the prior administration, the CFTC had proposed banning sports and political event contracts outright. Selig reversed that entirely—clearing the field for Kalshi and other DCMs to operate without the threat of a federal ban while the litigation plays out.
The explicit litigation posture—filing amicus briefs, coordinating with the DOJ—is unprecedented for a derivatives regulator. Traditional CFTC enforcement strategy focuses on market integrity and participant protection, not on acting as an advocate in state-versus-federal jurisdictional disputes. The agency’s decision to enter the Nevada case directly signals that it views the preemption question as foundational to its authority over a rapidly growing asset class, not merely a nuisance dispute between Kalshi and individual states.
Kalshi’s January 2026 volume reached $9.6 billion, up 45% from December 2025, suggesting that the market is growing faster than the litigation can constrain it. By the time any Supreme Court decision could take effect, the question may be less about whether to permit prediction markets and more about under what regulatory framework they will operate at a much larger scale.
State CounteroffensiveThe Tax Gap Argument and the State Legislative Counter-Push
States are not simply defending regulatory turf. Their economic argument is precise and powerful: prediction markets operating under federal jurisdiction pay approximately 2.25% in corporate income tax. Traditional sportsbooks operating under state licensing pay gross wagering taxes of 6.75% to 18% depending on the state—a structural tax wedge of more than 15 percentage points. North Carolina, which enacted an 18% gross wagering tax on sportsbooks in 2024, generated over $132 million in sports betting taxes in 2025. Prediction markets contribute near zero to state gaming tax funds despite capturing growing volumes of the same underlying wagering activity.
The American Gaming Association frames the aggregate exposure starkly: legal gaming generates $53 billion annually in state and local tax revenues. The AGA’s position is that CFTC preemption does not just affect sports betting taxes—it threatens the entire fiscal and consumer protection infrastructure that state licensing regimes have built over the past decade following the Supreme Court’s 2018 PASPA ruling.
Beyond taxes, the regulatory asymmetry extends to consumer protection. Prediction markets operating as federally regulated exchanges bypass state-mandated age verification, geolocation requirements, self-exclusion programs, and responsible gaming mandates that licensed sportsbooks must maintain at significant operational cost. States argue that this creates not only a fiscal disadvantage for traditional operators but a direct harm to consumers who lose access to the protection frameworks built into state licensing.
The state legislative response is already taking shape. New York introduced the ORACLE Act (Assembly Bill 9251) to create a state-level event contract framework that explicitly prohibits athletic and political outcome markets. The bill represents the leading edge of a counter-offensive: rather than waiting for courts to resolve the preemption question, state legislatures are trying to build explicit statutory prohibitions that would be harder for federal courts to override even under a broad reading of CFTC authority. Whether those statutes survive a CFTC preemption challenge is itself an open legal question—but their existence adds another layer of litigation complexity to an already crowded docket.
What Happens NextApril Oral Argument, the Supreme Court Path, and the Operator Window
The consolidated Ninth Circuit oral argument scheduled for April 2026 is the next major inflection point. Legal observers view it as the most likely near-term precursor to a Supreme Court petition, given the scale of the circuit split now emerging across the Third, Fourth, and Ninth Circuits. A definitive Ninth Circuit ruling—whichever direction it goes—creates the conditions for SCOTUS cert.
Three scenarios are plausible from here:
- Scenario 1: CFTC wins in circuit courts. If the Ninth Circuit rules that federal DCM requirements preempt state gaming laws, and the Third and Fourth Circuits align, the Supreme Court may decline certiorari and allow prediction markets to operate nationally under a federal framework. This would lock in the current regulatory arbitrage as permanent—traditional sportsbooks would face a perpetual structural disadvantage in tax treatment and compliance cost.
- Scenario 2: Circuit split deepens. If the Ninth Circuit splits from other circuits, the Supreme Court is highly likely to grant cert. This creates an 18–24 month uncertainty window during which prediction market operators have legal cover in some jurisdictions but not others. Volume would likely concentrate in states where injunctions are in place.
- Scenario 3: Congress acts. A PASPA-style federal framework that resolves the preemption question legislatively—establishing either federal primacy or a cooperative federalism model similar to the current sports betting regime—would clear the legal uncertainty but almost certainly impose licensing requirements, tax obligations, and consumer protection mandates that reduce the current arbitrage.
Citizens Financial Group projects prediction market revenues growing from roughly $2 billion annually today to $10 billion or more by 2030. That projection assumes some version of legal resolution that allows the market to grow—but the path to that resolution materially affects who captures the revenue. A CFTC victory maintains prediction markets as a distinct federally regulated channel. A state victory forces compliance convergence that narrows the gap between prediction markets and licensed sportsbooks.
Data Sources & References
- Norton Rose Fulbright: CFTC Files Amicus Brief in Support of Prediction Markets — CFTC amicus brief analysis, volume and contract figures
- Holland & Knight: Prediction Markets at a Crossroads — 50+ active cases count, jurisdictional battle overview
- NC State Poole College of Management: Prediction Markets vs. States — tax gap analysis, $44B volume figure, North Carolina gaming tax data
- NBC News: CFTC Chair Selig on Prediction Markets and Nevada Case — 2,700% Super Bowl growth figure, CFTC regulatory agenda
- CNBC: Kalshi Super Bowl Volume — $1B+ single-day volume, $2.8B weekly record
- DeFiRate: Super Bowl Surges Kalshi to Record $2.8B Week — Revenue trajectory ($1.8M → $24M → $260M)
- DeFiRate: Prediction Markets Overview — $127.5B annualized volume, 2.49M unique users, $1B+ open interest as of February 2026
- NBC News: Nevada Legal Battle Overview — 37 states + D.C. amicus coalition, 60 tribal gaming interests
- American Gaming Association: Sports Event Contracts — $53B annual state and local gaming tax revenues figure
- Loper Bright Enterprises v. Raimondo, 603 U.S. __ (2024) — elimination of Chevron deference