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Explaining Event Contracts From Legal Structure, Regulatory Status, and Licensing Implications
A founder building a prediction market platform would ask us whether they need a gambling license, a derivatives license, or something else entirely?
With the rising trend surrounding prediction markets, we now receive a variation of this same question every now and then.
Six months ago, we might have given a simple, straightforward answer. Today, the answer is that it depends on which federal circuit a regulator happens to be sitting in.
Event contracts are the financial instruments at the center of prediction markets, the platforms where people trade positions on events, whether something will happen.
Will Argentina go to the semifinals in the World Cup?
Will it rain in New York on the first day of December?
Some platforms run these event contracts through central limit order books that match buyers and sellers directly. Others use automated market makers that price contracts algorithmically against a liquidity pool.
Either way, the mechanics are simple. You buy a contract for less than a dollar. If the event happens, it settles at a dollar. If it does not, it settles at zero.
That simplicity is exactly why regulators cannot agree on what these things are.
Is event contracts swaps, futures, or gambling?
The core legal question here decides which regulator you answer to and whether state law can touch you at all.
Under the Commodity Exchange Act, a “swap” is any contract whose payout depends on the occurrence of an event “associated with a potential financial, economic, or commercial consequence”. That definition is broader than most founders expect.
When the Third Circuit ruled on KalshiEX LLC v. Flaherty in April 2026, the majority held that sports outcomes clear this bar easily. Their reasoning leaned hard on the money riding on those outcomes across the sponsorship and broadcast side of the sports industry.
Judge Roth’s dissent took the opposite view, describing Kalshi’s sports contracts as barely distinguishable from a standard sportsbook product and arguing that branding alone should not convert gambling into a swap.
We find this tension genuinely useful for founders to sit with because it is not going away soon. A Nevada district court reached the opposite conclusion on similar facts.
Litigation is now active (as this piece is being written) across the Third, Sixth, and Ninth Circuits, and a split this direct usually ends up in front of the Supreme Court eventually.
The CFTC’s “special rule”, and what June 2026 changed
If your contract clears the swap threshold, the next hurdle is the Special Rule. Added by Dodd-Frank at CEA Section 5c(c)(5)(C), it lets the CFTC prohibit any event contract it decides involves an enumerated activity, such as gaming or unlawful conduct, and is contrary to the public interest.
For over a decade, the CFTC applied this rule case by case with no fixed test. On June 10, 2026, that changed. The Commission published a Notice of Proposed Rulemaking that finally gives the Special Rule a defined shape: a three-step sequential inquiry.
First, is this an event contract in an excluded commodity?
Second, does it involve one of the enumerated activities?
Third, if it does, is it contrary to the public interest?
That last question turns on a set of factors weighing price discovery value against market integrity risk, with real attention paid to whether the exchange can actually self-regulate the product it wants to list.
The proposal defines gaming narrowly as an activity engaged in for recreation that depends on luck, skill, or athletic ability. It carves out contests decided on merit, elections being the obvious example, from that definition entirely.
Read the proposal closely, and most sports outcome contracts survive the analysis intact. Comments close July 27, 2026, and the rule would take effect 60 days after adoption. Nothing here is settled law yet. It is a proposal, and a well-lobbied one at that.
Also read: We Round-up 7 of the Most Successful Web3 Casino Platforms and Explain How They Get Licensed
Jurisdictional conflicts and federal preemption
Here is where things get uncomfortable for state regulators. The Third Circuit found that the CEA both field-preempts and conflict-preempts New Jersey’s gambling laws as applied to contracts trading on a CFTC-licensed Designated Contract Market in the U.S..
Field preemption means Congress occupied the entire regulatory space for swaps traded on DCMs. Conflict preemption means letting a state enforce its own rules would frustrate the uniform national framework Congress built through Dodd-Frank.
This creates a genuine catch-22 for a DCM operator. Federal rules require a registered exchange to offer impartial, non-discriminatory access to eligible participants nationwide. A state cease-and-desist order asking that same exchange to block residents of a single state puts the operator in a spot where honoring the order might itself violate a federal mandate.
The CFTC and Department of Justice leaned directly into this tension in 2026 by suing several states to block their enforcement actions against DCMs. How that plays out will decide whether state gaming regulators retain any meaningful authority over this asset class.
Licensing, compliance, and tax realities
None of the legal analysis above matters if the operational side cannot hold up under scrutiny. Registering as a Designated Contract Market or Swap Execution Facility is the entry point, but the ongoing self-regulatory burden is what determines whether a platform survives its first CFTC exam.
That burden starts with Know-Your-Customer onboarding that actually screens for concentration risk and insider access. It extends to surveillance infrastructure capable of flagging manipulation across thin markets. And it requires settlement criteria that are objective and publicly documented before a contract lists, not written after a dispute forces the question.
The CFTC has already brought several enforcement cases against traders who used non-public information tied to an event’s outcome.
Traders face their own unresolved mess. The IRS has issued no formal guidance on how event contract gains should be taxed. In practice, we’ve seen tax counsel gravitate toward one of three positions: treating gains as ordinary income, applying standard capital gains rules, or claiming the far more favorable 60/40 mark-to-market treatment under Section 1256, which normally applies to regulated futures.
That third option is the one people want, but the statute was written for instruments with daily margin and a clear reference asset, features that a lot of binary event contracts simply do not have. Most platforms, including some of the largest, do not issue a complete 1099 for this activity today.
Traders are left keeping their own records and picking a position they can defend, which is not a comfortable spot for anyone managing real money.
Where this goes from here
Prediction markets crossed USD 25 billion in trading volume on CFTC-registered platforms in 2025, and daily event contract listings grew from roughly 1,600 to more than 160,000 in a single year. That growth curve is really the whole story.
Whether it continues depends on questions still wide open. Will the Supreme Court eventually resolve the swap classification fight, or will Congress step in first with legislation that overrides the courts entirely?
Our guess is the CFTC’s own final rule ends up settling more of this in practice than either branch does on paper.
We honestly believe that platforms prioritizing compliance will be the ones surviving in three years.
Get the entity structure right from day one. Build the surveillance and KYC infrastructure before a regulator asks for it. And have the tax conversation with your traders early, because leaving them exposed on Section 1256 is the kind of thing that comes back to bite a platform’s reputation later.
Founders in this space most often underinvest in exactly this intersection of legal structuring, compliance discipline, and product design.
The regulatory picture here is moving fast, and parts of this may already be dated by the time you read it. Treat it as a snapshot rather than a final word, and don’t use it as a substitute for legal advice on your specific structure.
If you are building or trading on a prediction market platform, LegalBison can help you work through entity structure, licensing pathway, and compliance build-out.
FAQ
What is meant by a prediction market?
It is a trading platform where participants buy and sell contracts tied to the outcome of a future event. The contract’s price reflects the market’s collective view of how likely that outcome is.
Why are prediction markets illegal?
They generally are not, at least not at the federal level, when offered through a CFTC-licensed Designated Contract Market. Several states disagree and argue their own gambling laws should still apply on top of federal rules. Courts are currently split on whether federal law preempts those state restrictions, so this question does not have one clean answer yet.
What is an example of a prediction market?
Kalshi and Polymarket come up the most in conversations with founders. Kalshi operates as a CFTC-regulated Designated Contract Market, while Polymarket has built most of its volume outside that federal framework entirely.
What is the largest prediction market?
Depends on how you measure it. Polymarket has generally led in global trading volume, while Kalshi has grown into the largest CFTC-registered platform inside the United States. Across all CFTC-registered prediction markets combined, total volume passed USD 25 billion in 2025.
