NFL Backs Up New Jersey Officials in Request for Supreme Court Review

Over eight years ago, the National Football League and New Jersey officials were on opposing sides of a dispute over whether those authorities could regulate wagers on its contests at the Supreme Court of the United States.

On Thursday, the NFL joined New Jersey governmental figures on similar points of contention.

The NFL filed an amicus brief in Kalshi vs. Flaherty, asking the court to hear an appeal of the U.S. Third Circuit Court of Appeals' decision on a preliminary injunction that Kalshi currently enjoys. The league says the review is pivotal to consumer confidence in its product and the quality of continued operations.

NFL makes stance clear before SCOTUS

The NFL's filing argues that the Supreme Court should take up the defendants' appeal in Kalshi v. Flaherty. It bases that argument on three points:

• The US Commodity Futures Trading Commission (CFTC) and operators of designated contract markets (DCMs) have failed to adequately address the NFL's consumer protection and integrity concerns

• The current circuit court split on the legal question of whether federal law preempts state enforcement of gambling laws makes it difficult for the NFL to address its market manipulation concerns

• Supreme Court's opinion on that question would facilitate clear regulatory pathways for the NFL to redress grievances and draw attention to issues

The brief says the CFTC and DCM operators haven't met the NFL's expectations to curtail markets that could be easily manipulated. The NFL sent a letter to DCM operators in September and has also commented on pending CFTC rules toward that end.

The New Jersey governmental officials who are defendants in the case have also raised concerns about what they perceive as insufficient consumer protection and integrity controls on DCMs related to sports event contracts. They aren't the only voices calling for Supreme Court intervention.

State attorneys general strengthen call for SCOTUS to hear appeal

Attorneys general from 39 US states have also filed a joint amicus brief reinforcing the request that SCOTUS grant cert in Kalshi v. Flaherty. The brief also cites the split between the Third and Sixth/Ninth Circuits and calls on the Supreme Court for clarity.

The attorneys general take their argument further by also stating how they believe the Supreme Court should rule after it takes up the appeal.

"The CEA (Commodity Exchange Act) comes nowhere close to providing the clear text required to take the States’ power away. And eliminating those guardrails would come with real costs. States lose core sovereign powers. Citizens lose critical protections. But prediction markets walk away with a bigger bottom line. That is not a tradeoff that this Court should accept."

Gambling regulators are echoing that sentiment.

IAGR, NAGRA formalize support for New Jersey officials

Another notable amicus brief supporting New Jersey's call for the Supreme Court review comes from the International Association of Gaming Regulators (IAGR) and the North American Gaming Regulators Association (NAGRA). Those are trade associations for people who work for agencies like the New Jersey Division of Gaming Enforcement.

The brief takes a more agnostic position on how the Supreme Court rules, focusing narrowly on the court taking up the case.

It reads that "the question is one of exceptional importance to the agencies charged with enforcing gaming law and the public they serve" as "conflicting appellate decisions have created uncertainty as to whether regulators may apply state gambling laws to the same sports event contracts while related litigation is pending in other jurisdictions."

As the number of amicus briefs calling for review grows, the pressure on the Supreme Court to hear the case appropriately increases. These officials and organizations are among the most influential in their spheres of influence, so their calls deserve attention.

If nothing else, DCM operators in the US like Kalshi have gotten New Jersey gambling regulators and the NFL on the same side of a legal dispute over wagering on sporting events.

Over eight years ago, that wouldn't have looked like a smart bet.