The U.S. Department of Justice and more than a dozen state attorneys general have filed separate but related briefs with a U.S. appellate court, backing sports streamer Fubo in its ongoing lawsuit against Venu Sports.
The briefs, filed on Tuesday in the Second Circuit Court of Appeals, said Venu Sports’ attempts to have a lower court’s temporary injunction that prevents the service from launching should actually remain in place because the streaming service, as described, could harm competition in the pay television space as Fubo had earlier warned. (Both briefs are available to download on The Desk: Pro Access — click or tap here.)
Venu Sports is backed by Fox Corporation, the Walt Disney Company’s ESPN and Warner Bros Discovery (WBD), which have offered their sports-inclusive TV channels to the service. The company planned to debut in August with a streaming product priced between $40 and $50 per month, and which included sports channels like ESPN, Fox, ABC, TBS and TNT.
Shortly after Venu Sports was announced, Fubo filed its lawsuit on antitrust grounds, taking issue with the service’s plan to offer only sports-inclusive channels without other co-owned networks like CNN, Fox News, FX or National Geographic. Those channels are typically forced on cable, satellite and streaming services as a condition of taking sports-inclusive networks, Fubo noted. Fubo carries channels from Disney and Fox, but not WBD.
In August, a federal judge overseeing the lawsuit approved a request by Fubo for a temporary injunction, which put Venu Sports on indefinite hiatus while the case drags on. The broadcasters immediately appealed the issue, with the hopes of having the injunction lifted.
On Tuesday, the DOJ and 16 state attorneys general filed an amicus curae, or “friend of the court” brief, arguing that the injunction should remain while the case proceeds. The prosecutors say Fubo’s evidence proves Disney, Fox and WBD “would have incentives to foreclose distributors like Fubo from access to unbundled sports content, and the market power to follow through on these incentives indicated that the formation of Venu may substantially lessen competition.”
Executives at Fubo earlier argued that they faced the likelihood of higher subscriber churn if Venu Sports were to launch, something that could bankrupt the company.
Fubo is highly dependent on sports programming for its service, with the company affirming higher churn when the National Football League (NFL) is in its off-season. Fox and Disney share live football rights with Comcast’s NBC and Paramount Global’s CBS, whose channels are also carried on Fubo.
In public statements and court testimony, Fubo executives say they would like to offer the same package of sports-inclusive channels to their subscribers, without the bloat of general entertainment, news and lifestyle channels that customers have to pay for, even if they don’t watch. Last month, the company launched its own subscription marketplace that allows customers to buy Paramount Plus, NBA League Pass and FanDuel Sports Network without a pay TV subscription, which opens the door for it to also sell Venu Sports on an à la carte basis, should that become available to them in the future.
