Zuckerman Spaeder Files Amicus Brief for Former CFTC and SEC Chair Gary Gensler in Sports Betting Prediction Markets Appeal

A closely watched fight over whether sports betting prediction markets belong under federal financial regulation or state gaming laws is now before the U.S. Court of Appeals for the Sixth Circuit, with former U.S. Commodity Futures Trading Commission and U.S. Securities and Exchange Commission Chair Gary Gensler arguing that Congress never intended to make the CFTC the nation’s sports betting regulator.

Zuckerman Spaeder partner Aitan S. Goelman, who was Director of the CFTC’s Division of Enforcement between 2014 and 2017, filed Gensler’s amicus brief in KalshiEX LLC v. Matthew Schuler et al on June 11, supporting Ohio officials defending the state’s authority to regulate sports betting. The brief argues that the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 was aimed at the causes of the financial crisis and the previously unregulated swaps market, not sports betting.

“This case raises an important question about the limits of federal financial regulation and the traditional role of states and tribes in regulating gaming,” partner Aitan S. Goelman said. “Gary Gensler’s brief provides the court with firsthand historical context about what Congress was, and was not, trying to do when it enacted Dodd-Frank after the 2008 financial crisis.”

Gensler chaired the CFTC from 2009 to 2014, led the agency’s implementation of Dodd-Frank, and later chaired the SEC from 2021 to 2025. He also served in senior Treasury Department roles and worked with Congress on major financial regulatory legislation, including Dodd-Frank and the Commodity Futures Modernization Act.

The brief argues that sports bets do not fit the statutory definition of swaps because they do not serve the hedging and price-discovery purposes at the core of federal derivatives regulation. It also argues that no one involved in Dodd-Frank’s passage called for preempting state gaming laws or displacing states’ traditional authority over sports betting.

The filing has drawn national media attention, including coverage from Bloomberg (subscription required), CNBC, and CoinDesk. Gensler also discussed the issue on his “Power & Consequences” podcast, which has published a roundup of the brief, related coverage and commentary on prediction markets.

“I want to tell the story of why Congress did what they did,” Gensler told CNBC on June 11. “Millions of people were out of work, millions had lost their homes, and there was a desire to cover what was called the credit default swap market and the interest swap market, not sports betting.”

In addition to Goelman, the Zuckerman Spaeder team includes associates Alyssa Howard and Ross M. Slaughter. The brief was filed with Victor Suthammanont of Kostelanetz.