SFC and Four Other Advocacy Organizations file Amicus Brief in Fubo v. Disney
Today, Sports Fans Coalition along with America Economic Liberties Project, Electronic Frontier Foundation, Open Markets Institute, and Public Knowledge filed an amicus brief in FuboTV INC. and FuboTV Media Inc. vs. The Walt Disney Company, ESPN, Inc., ESPN Enterprises, INC. Hulu, LLC, Fox Corporation, and Warner Bros. Discovery in support of FuboTV’s Motion for a Preliminary Injunction against the anticompetitive joint venture in their antitrust lawsuit. As we write, “it is critical that the Court grant injunctive relief to halt Defendants’ anticompetitive conduct. Defendants’ restrictive licensing practices have already caused significant harm to consumers and competition; and, combined with the JV, this conduct will all-but guarantee Defendants an immediate and durable monopoly in the market for skinny sports bundles.”
Early Monday morning, Judge Garnett accepted our brief saying, “Neither Plaintiffs nor Defendants, naturally pursuing their own economic interests, are necessarily adequately representing the perspectives or interests of consumers in the relevant market. Accordingly, the Court finds that the proposed amicus brief, filed by well-respected non-profit organizations with a history of advocating for consumers in areas relevant to this litigation, has the potential to aid the Court and ‘offer insights not available from the parties.’”
In March, we called on Congress to step in and help block this joint venture. Now we file with the Court in hopes an injunction will be granted that blocks this deal. For decades, the cable industry has forced a “big fat bundle” of unwanted channels and junk fees on consumers. The promise of the internet presented an opportunity that every sports fan “who ever bemoaned the bundle” could benefit from a more flexible, consumer-driven, unbundled video ecosystem that allowed fans to only pay for what they wanted, rather than pay a ransom to watch what they don’t. That promise never came to fruition.
Enter Fubo. Fubo sought to revolutionize the content streaming industry by providing skinny packages that allowed fans to pay for what they wanted. A skinny sports bundle was the holy grail. However, the Defendants, in this case, control all the sports rights and prevented Fubo and other platforms from offering sports-exclusive packages. While consumers complained about “the fragmentation of sports,” the country’s biggest media companies only wanted to provide this pro-consumer service if they were the ONLY ones that got to offer it. T
FuboTV is asking for a preliminary injunction from the Court to prevent the three juggernauts from consummating their joint venture. Fubo provides major league and niche sports content for consumers to enjoy at an affordable price compared to other cable or streaming distributors. However, that may change if a joint venture is allowed between the Defendants. Fubo could be put out of business due to the monopolizing of sports streaming services and the prices they enact to drive out competition.
In our brief, we argue that the JV will eliminate market competition, stifle innovation, and harm consumers. Specifically, the JV will:
Result in a substantial loss of competition among defendants and the JV will create a “fat monopoly” in the market for skinny sports bundles.
Increase the risk of anticompetitive coordination among the Defendants and other Market Participants.
Harm consumers by leading to increased prices and decreased quality
Lead to fewer options and access to diverse sports programming
Less innovation
Harm sports leagues and other creators from anticompetitive conduct.
Instead of letting this “fat monopoly” disguised as a skinny sports bundle move forward, we hope the Court will grant Fubo their preliminary injunction and prevent this JV from moving forward.