Fubo throws in the towel despite having the upper hand
In August, Fubo delivered a stunning upset against Disney, Fox, and Warner Bros. Discovery – getting a preliminary injunction granted against the wildly anticompetitive Venu Sports. Now they’ve abandoned the cause altogether, opting to be acquired by Disney instead.
As you may recall, Fubo filed an antitrust lawsuit against Disney, Fox, and Warner Bros. Discovery for their anticompetitive joint venture known as Venu Sports. Sports Fans Coalition, and several other advocacy groups filed an amicus brief arguing that Venu Sports will eliminate market competition, stifle innovation, and harm consumers. In her ruling, Judge Garnett wrote:
“As the Amici point out in their submission, these consequences greatly increase the risk that consumers will be vulnerable to price increases, decreased quality, and decreased options in the market” and that the “balance of equities tips decidedly in favor of Plaintiffs and the public interest would be served by the entering of a preliminary injunction."
In other words, Venu Sports would have been so bad for consumers she felt compelled to prevent it from moving forward.
Naturally, Disney appealed and we filed a second amicus brief, this time adding even more public interest groups to the team. However, on the eve of the appeal hearing, Fubo agreed to be bought out by Disney instead. The terms of the deal are astounding, and just as flagrantly anticompetitive as the original Venu Sports was. Upon hearing the news, Executive Director, Brian Hess issued the following statement:
“Just when we thought we were at first and goal, the Fubo/Disney settlement sends us back to the other end of the field. It does nothing to fix the problem Fubo first raised when it sued Disney, Fox, and Warner/Discovery: fans will only have one place to go for a "skinny" sports bundle. In many ways, this settlement makes matters worse – Disney, the biggest of Big Media, controls the game. Fans want competition on the field and in the marketplace, and we believe Fubo was best positioned to provide that competition. Instead, they joined the other team. We urge the Department of Justice, state Attorneys General, consumers, competitors, and our fellow amici filers to stay in the game and fight to block this deal.”
Disney knew what was at stake. If Fubo had prevailed, Big Media’s anti-consumer, restrictive, and monopolistic bundling practices would have been broken wide open, giving consumers a chance to save money. Instead of continuing to fight, Disney decided to “catch and kill” Fubo. What’s most disappointing, Fubo went along with it.
We hope the DOJ will step in, stand up for fans, and kill this deal.