Fubo Granted Preliminary Injunction Against ESPN/Fox/WBD Sports Joint Venture

FuboTV will likely succeed in proving that the planned ESPN/Warner Bros. Discovery/Fox Sports streaming joint venture will violate federal antitrust law, a federal judge ruled Friday as she granted plaintiff Fubo a preliminary injunction to block it. The sports streaming JV, Venu, has raised anticompetitive concerns on the part of some federal lawmakers (see 2404170067).

"Fubo and American consumers will face irreparable harm in the absence of an injunction," U.S. District Judge Margaret Garnett of the Southern District of New York wrote in the docket 1:24-cv-01363 order. If Venu launches, Garnett said, "it will be the only option on the market for those television consumers who want to spend their money on multiple live sports channels they love to watch, but not on superfluous entertainment channels they do not." However, she said ESPN, Fox and WBD will use their long-standing programming-bundling practices, creating a situation where no other live-sports-only options are available in the pay-TV marketplace. In addition, the three have "near-monopolistic control over the ability for a different live-sports-only streaming service to exist and compete with the JV."

While the three programmers have promised they won't impose price hikes on consumers and other distributors, she said, "there is good reason to believe that it will [and] one purpose of antitrust injunctions is to prevent anticompetitive incentives from forming in the first place so that American consumers do not have to simply take their word for it and hope for the best."

The programmers, in a statement, said they "respectfully disagree with the court’s ruling and are appealing it. We believe that Fubo’s arguments are wrong on the facts and the law, and that Fubo has failed to prove it is legally entitled to a preliminary injunction. Venu Sports is a pro-competitive option that aims to enhance consumer choice by reaching a segment of viewers who currently are not served by existing subscription options.”

Meanwhile, critics of the JV cheered. "As ACA Connects said from the start, this sports streaming juggernaut is blatantly anticompetitive," ACA Connects President Grant Spellmeyer said in a statement. "There should be a level playing field in the sports media landscape without the threat of these media giants controlling the marketplace and jacking up prices."

DirecTV, in an email, said it was "pleased with the court's decision and believe[s] that it appropriately recognizes the potential harms of allowing major programmers to license their content to an affiliated distributor on more favorable terms than they license their content to third parties.” The Sports Fan Coalition said it "has fought against consolidation in the sports industry for many years. Today, Judge Garnett fought alongside us. Fans want skinny sports bundles, but they also want competition and choice."

The temporary injunction "will help ensure that consumers have access to a more competitive marketplace with multiple sports streaming options," Fubo CEO David Gandler said in a statement. "The proposed joint venture was only the latest example of anticompetitive practices [the three] have consistently engaged in for many years. We believe these practices monopolize the market, stifle competition and cheat consumers from deserved choice." "Today we saved the industry," Gandler later posted on X. Fubo said it will continue pursuing its antitrust suit against the JV partners (see 2402210007).