CFTC Moves to Define Prediction Markets as Swaps, Clarify Gambling Exclusion
The Commodity Futures Trading Commission (CFTC) is intensifying its efforts to assert authority over prediction markets, unveiling two measures Friday that would formally classify event contracts as “swaps” under federal law, while simultaneously excluding traditional gambling activities.
The first measure, a proposed rule now open for public comment, aims to explicitly broaden the definition of a “swap” to encompass event contracts. These contracts can be tied to a wide array of outcomes, including sports, politics, cultural events, and weather. The CFTC stated that these contracts are financial instruments “commonly known to the trade as swaps,” and that this action will eliminate any uncertainty regarding their regulatory status. “These products are commodity derivatives squarely within the CFTC’s regulatory remit under the Commodity Exchange Act and are within the agency’s exclusive jurisdiction,” CFTC Chairman Michael Selig said in a statement.
The second measure, an interim final rule effective immediately upon publication, draws a contrasting boundary. It codifies the agency’s long-standing position that casino-style gambling products, such as sportsbook wagers and casino games, are not considered swaps. “Casino-style gambling products are not derivatives,” Selig explained, characterizing this step as a clarification of “the limits of its regulatory remit.” Both proposals include a 30-day public comment period.
Collectively, these two rules sharpen a critical distinction at the center of an intense jurisdictional dispute. If event contracts are deemed swaps, they fall under the CFTC’s purview, which Selig has argued is exclusive, thereby shielding platforms like Kalshi and Polymarket from the oversight of state gambling regulators. Several states have initiated lawsuits against prediction market operators, alleging illegal gambling, and the CFTC has filed counter-suits to defend its regulatory territory.
These filings formalize proposals that the agency submitted to the White House for review late last month. This move is part of a broader strategy by the CFTC to proactively assert its authority rather than await congressional action.
The agency has generally adopted an industry-friendly approach towards both traditional and cryptocurrency markets. The Commission recently issued no-action relief that permits crypto applications to offer regulated derivatives and has advanced separate rulemakings concerning crypto markets.
The legal stakes for prediction markets are escalating. A judicial disagreement over whether event contracts qualify as federally regulated swaps, which has pitted the NFL and other entities against Kalshi, has attracted the attention of the Supreme Court. This means the question the CFTC is now attempting to resolve through regulation may ultimately be decided by the nation’s highest court.
