Three more groups join SFC against the anticompetitive Venu Sports

For years, cable companies have forced customers to buy “fat” bundles — large packages of channels with inflated price tags, often including unwanted content. Sports fans in particular have been vocal about their desire for more control over which games and leagues they pay to watch. In our new amicus brief, we argue that consumers, especially sports fans, are tired of paying for bundles that force them into unwanted content just to access the sports they love.

In theory, a JV that promises a “skinny” bundle of sports channels might seem like a step in the right direction. However, our brief proves that the proposed JV would do the opposite. By consolidating the sports programming market, it would reduce the number of independent options available to fans, limit competition, and leave the JV unchecked in setting prices and controlling content. Essentially, we argue that this JV would lock consumers into another restrictive bundle and eliminate competition that could drive down prices or introduce innovative features.

The three companies behind this JV already control around 80% of the sports broadcasting market. If allowed to combine their sports content offerings, these companies would eliminate competition among themselves, creating a monopoly over sports streaming services. In the current landscape, services like FuboTV offer alternative sports bundles that focus on affordability and a la carte options. However, if the JV is allowed to proceed, companies like Fubo would be unable to compete and might be driven out of the market altogether.

This reduced competition would create fewer choices for consumers, limit access to niche and international sports, and stifle innovation. Without a competitive market, the JV would have little incentive to improve its services or maintain affordable prices. Past mergers in the media industry, the coalition notes, have often promised benefits for consumers, only to result in price hikes and fewer choices.

Shortly after American Economic Liberties Project, Electronic Frontier Foundation, Open Markets Institute, and Public Knowledge filed our first amicus brief in Fubo v Disney et. al, district court Judge Garnett sided with our arguments and granted a preliminary injunction that prevented the JV from moving forward until after a jury decides whether Venu Sports violates antitrust laws. 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." Unable to graciously accept defeat, Disney, Fox, and Warner appealed the ruling. 

Yesterday, we filed another amicus brief in the 2nd Circuit Court of Appeals. This time, though, we were joined by three more organizations, the American Antitrust Institute, the Center for Democracy and Technology, and the National Consumers League, bringing our total number of amici to eight. 

In our new brief, we commend the district court for evaluating the JV’s risk of harm to competition and dispense with the erroneous argument that antitrust lawsuits brought by competitors shouldn’t be taken seriously, which several Republican Attorneys General made, saying:

“Contrary to arguments set forth by several amici in support of Defendants, private antitrust enforcement, including competitor lawsuits, are an important and valuable complement to the efficient detection of antitrust violations and

enforcement of antitrust law… Competitors are the canary in the coal mine. Because they are incentivized to monitor the market for potential opportunities and competitive threats, they are uniquely situated to identify ‘anticompetitive tendencies in their

incipiency.’ Indeed, harm to a competitor is in no way inconsistent with harm to consumers; in fact, it may be the most immediately palpable symptom of harm to competition in the marketplace. As the Honorable Diane Wood, recently retired from the Seventh Circuit Court of Appeals, observed, ‘True as it might be that ‘the antitrust laws are for the protection of competition, not competitors,’ it is equally true that without competitors, there will be no competition.’”

We hope that the 2nd Circuit will see the wisdom in Judge Garnett’s decision and uphold her ruling in order to protect sports fans from this anticompetitive JV.