CFTC tries to settle its prediction-market fight with the states by redefining swaps
CFTC sent the White House two rules on Sept. 28 that would define event contracts as swaps and carve out casino-style gambling products. The agency is trying to settle by rule a state-federal fight that has split appeals courts and now sits before the Supreme Court.
The Investor · Invest desk

What happened
- A federal court last week found Kalshi's sports-tied contracts are not swaps and are subject to state gambling laws, siding with Ohio and Tennessee.
- New York sued Polymarket last week to ban it within the state, following an earlier state action against Kalshi.
- A CFTC advisory this week said contracts settling on whether a named person says certain words should be presumed readily susceptible to manipulation.
Why it matters
- What it limits constraint Even a final swap rule would leave standing the holding that the Commodity Exchange Act does not preempt Ohio and Tennessee gambling law, so state suits need not end on the definition.
- Who's exposed exposure Whatever the text calls casino-style falls outside the swap definition, and into state regulators' reach, once the interim rule is approved, and operators cannot yet tell which contracts that covers.
- What it sets up precedent A second CFTC rulemaking at the White House puts crypto and event-contract policy on the agency's timetable, and operators and states will be answering rule text the regulator drafted.
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The carve-out can take effect before the claim does [19]. The exclusion for "casino-style gambling products" is an interim final rule, RIN 3038-AF81, and could take effect on approval [6]. The inclusion of event contracts, RIN 3038-AF82, is a proposed rule that goes to public comment first [5]. White House budget-office review is typically the last step before a rule goes out for comment, according to CoinDesk's reporting as cited by PYMNTS [2]. So the part of the package that concedes jurisdiction to the states can be in force while the part that asserts it is still open for comment [19].
I think the order is aimed at judges. Chairman Michael Selig has argued that CFTC authority over swaps is exclusive. If it is, state gambling regulators cannot reach the platforms [4]. The agency has countersued states that sued operators for illegal gambling [8]. Handing casino-style products to the states first shrinks the federal claim before a court has to weigh it. The counter-reading is that the carve-out is housekeeping, a boundary drawn so the inclusion rule does not sweep in products the CFTC never meant to supervise. The CFTC has not made the text of either rule public [12].
The harder limit is in the Ohio and Tennessee ruling. After finding that Kalshi's sports contracts were not swaps, the court went a step further [9]. "It also held that, even if the contracts qualified as swaps, the CEA does not expressly or implicitly preempt Ohio and Tennessee gambling laws," PYMNTS wrote [10]. A rule that redraws the swap definition goes at the first holding. The second holding assumes the contracts are swaps and leaves state law standing anyway [18].
If the text keeps sports contracts inside the swap definition, the CFTC is contradicting that court head-on while conflicting appeals-court rulings sit before the Supreme Court [3]. Should "casino-style" turn out to cover sports contracts, the agency will have conceded the category the Ohio and Tennessee case was about [9]. A Supreme Court decision on preemption grounds would make the definition matter less for suits like New York's against Polymarket [13]. I'd expect the first outcome, given Selig's exclusivity argument [4]. A published RIN 3038-AF81 that lists sports contracts as casino-style would prove that wrong [6].
The only size estimate in the record is the CFTC's own label. It classified both rules as not economically significant [7], though they decide who supervises event contracts traded on Kalshi, Polymarket, Crypto.com and Robinhood [11][4]. The agency has also stopped waiting for Congress. It recently sent a separate crypto-markets rulemaking to the White House, part of a post-Clarity Act pattern of writing its own rules [15].
The agency is asking for exclusive authority while it investigates former Rep. Adam Kinzinger over Kalshi bets tied to his own pardon [16]. Bloomberg reported that bank regulators and federal lawmakers are worried about Polymarket contracts on the likelihood of bank failures [17].
What to watch
- Publication of RIN 3038-AF81 and whether its definition of casino-style gambling products reaches sports contracts.
- Whether the White House clears the interim final rule before the Supreme Court acts on the appeals-court split.
- Whether either rule addresses preemption of state gambling law, the second ground of the Ohio and Tennessee ruling.
Information, not investment advice. This story is general information about companies and markets, drawn from cited reporting. It is not a recommendation to buy, sell or hold any security; check the cited sources before acting.
Clarity's read
What the record supports and how the coverage leans. The claims behind it follow.
Reality
- Evidence70
- Adoption
- Not scored
- Hype gap+30
- Incentives65
- Confidence72
Perspective Coverage
5 publishers- Builder
- Builder 18%
- Operator
- Operator 49%
- Investor
- Investor 33%
Claim ledger
Ranked by verification strength, evidence, and original report placement.
- [1]
The CFTC submitted two rules to the White House's Office of Information and Regulatory Affairs on Sept. 28 that would redraw the legal definition of a "swap" around event contracts: one including them as swaps and one excluding casino-style gambling products.
- [2]
Both rules were received by the White House's Office of Management and Budget, where review is typically the last step before submitting rules for public comment, according to CoinDesk as cited by PYMNTS.
- [3]
Conflicting appeals-court rulings over whether event contracts qualify as swaps are now before the Supreme Court, a split drawing the Court's attention.
- [4]
If event contracts are swaps, they fall under the CFTC's authority, which Chairman Michael Selig has argued is exclusive, placing the platforms beyond the reach of state gambling regulators.
- [5]
The proposed rule, RIN 3038-AF82, would further define the term "swap" to explicitly include event contracts and will head to public comment.
- [6]
The interim final rule, RIN 3038-AF81, would exclude "casino-style gambling products" from the swap definition and could take effect upon approval.
- [7]
The CFTC classified both rules as not economically significant.
- [8]
Multiple states have sued prediction-market operators alleging illegal gambling, and the CFTC has countersued to block that oversight.
- [9]
A federal court decision last week found Kalshi's sports-tied contracts are not swaps and are subject to state gambling laws, siding with the states of Ohio and Tennessee.
- [10]
"It also held that, even if the contracts qualified as swaps, the CEA does not expressly or implicitly preempt Ohio and Tennessee gambling laws."
- [11]
Event contracts are traded on platforms including Kalshi, Polymarket, Crypto.com and Robinhood, according to CoinDesk as cited by PYMNTS.
- [12]
The full text of the two CFTC rules is not yet public.
- [13]
New York last week sued Polymarket with the aim of banning it within its jurisdiction, echoing an earlier action against Kalshi.
- [14]
A CFTC advisory earlier this week warned that prediction-market contracts settling on whether a named person says certain words should be presumed readily susceptible to manipulation.
- [15]
The CFTC recently sent a separate crypto-markets rulemaking to the White House, part of a broader post-Clarity Act pattern of the agency pressing ahead with its own rules rather than waiting on Congress.
- [16]
The CFTC is investigating former Rep. Adam Kinzinger over Kalshi bets tied to his own pardon.
- [17]
Bloomberg News reported that bank regulators and federal lawmakers are worried about contracts on Polymarket tied to the likelihood of bank failures.
- [18]
A regulatory swap definition addresses the Ohio and Tennessee court's first holding (the contracts are not swaps) but not its second (no preemption of state gambling law even if they are swaps).
- [19]
The casino-style exclusion can be in force while the event-contract inclusion is still out for public comment.
Sources
5 independent publishers whose own reporting we read for this story.
- americanbanker.comCFTC files two "swap" definition change rules to White House
1 article · October 1, 2026
- cointelegraph.comCFTC seeks to define event contracts as swaps amid prediction market fight
1 article · September 30, 2026
- cryptobriefing.comCFTC sends prediction market rules to the White House for review
1 article · September 30, 2026
- decrypt.coCFTC Sends White House New Rules to Cement Its Grip on Prediction Markets
1 article · September 30, 2026
- pymnts.comCFTC Proposes Rules to Say Prediction Markets Are Not Gambling
2 articles · October 1, 2026
Topics and entities
Topics
- Federal preemption
- Prediction Markets
- Event contract regulation
- Swaps regulation
Entities
- Commodity Exchange Act
- Crypto.com
- CFTC
- Office of Information and Regulatory Affairs
- Robinhood
- Polymarket
- U.S. Court of Appeals for the Sixth Circuit
- Michael Selig
- Kalshi