January 11, 2025

Although this saga is over, future litigation might be needed to answer a core legal question: To what extent can multimedia companies, be they in sports or otherwise, join hands to stream live content without running afoul of antitrust law?
The Venu Sports case offered conflicting assessments about that very question. 
Fubo built its case around the theory that competing companies agreeing to 1) place their live sports content on one streaming platform and 2) steer clear of investing in similar streaming platforms ran the risk of putting Fubo out of business, stifling incentives for Venu Sports’ backers to innovate and giving those backers reason to charge higher prices. 
In a letter to the Justice Department last summer, U.S. Senators Elizabeth Warren (D-Mass.) and Bernie Sanders (D-VT), along with U.S. Rep. Joaquin Castro (D-Tex.), offered supportive words for Fubo’s case. They warned of Venu Sports leading to a “monopoly power over televised sports” since the platform would “control more than 80% of nationally broadcast sports and more than half of all national sports content.”
Echoing a similar point in amicus briefs filed last fall, President Joe Biden’s Department of Justice and New York Attorney General Letitia James, along with Democratic attorneys general of 15 other states and the District of Columbia, insisted the defendant companies were overly “dominant” in that they control most sports broadcasting rights in the United States. Another concern was the defendants might use Venu Sports to impose bundling requirements on rival distributors. These ideas were also captured in letters by DirecTV and EchoStar to Garnett earlier this week. The two companies warned that a joint venture like Venu Sports could lead to inflated prices and drive out competitors from the live pay TV market.

But the defendants and other interested parties argue those lines of reasoning were illogical and tantamount to fearmongering. 
Venu Sports, its backers underscored, would have only streamed nonexclusive content. That means consumers who wouldn’t have subscribed to Venu Sports could have still seen everything streamed on the platform by accessing other platforms or services—including those run by ESPN. 
Also, Venu Sports would not have been a monopoly in the sense that some sports networks weren’t included. CBS and NBC, for example, weren’t part of the service. Those and other companies would have competed against Venu Sports.
Price point was also stressed as a defense. For $42.99/month, a sports fan would have gained access to a wide array of live content. The alternative of buying multiple streaming and cable/satellite services would have collectively cost that fan more per month.
An amicus brief filed by the attorneys general of Florida, Alabama, Iowa, Kentucky, Mississippi and South Carolina maintained Venu Sports enhanced the marketplace for sports fans. They wrote Venu Sports would have offered fans the chance to buy live sports content without having to pay for unwanted bundled content. The AGs also maintained Garnett had misapplied antitrust law by endorsing “protectionism” to save Fubo. 
Garnett’s order to grant a preliminary injunction, as well as her order last month to deny a motion to dismiss, were not final orders in the case. They occurred before pretrial discovery and before a trial (neither of which will take place with the settlement). Those rulings were based on a limited scope of evidence and testimony. More substantial evidence, including confidential emails and texts, and a wider range of sworn testimony hadn’t yet been produced. Expert reports from economists and others in preparation for trial were also absent. With those caveats, Garnett expressed concern that even if the initial price for Venu Sports would have been favorable to consumers, Venu Sports could have stifled competition over time, potentially sparking higher prices.

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