Critical Week Arrives in Fubo’s Venu Sports Antitrust Lawsuit; Will Injunction Request Be Granted?

Venu Sports is back in court this week, and Judge Margaret Garnett of the U.S. District Court will have a decision to make by week’s end. Fubo wants a preliminary injunction against Venu to keep Disney, Fox and Warner Bros. Discovery from launching. Fox CEO Lachlan Murdoch told investors today that the service should launch this month. A hearing to determine whether that injunction will be granted is expected to last until Friday, and will see some of the biggest names in media testify as the three companies work to get Venu to the public on time.

Key Details:

• Fubo believes Venu will lead to harmful consolidation and higher prices, and points out that it has not been allowed to sell similar channel packages.
• Disney, Fox and WBD will counter that Venu is nothing more than a competing product to Fubo, and doesn’t violate antitrust laws.
• If an injunction is granted, it could be years before Venu makes it to customers, if at all.

The injunction hearing is set to begin on Tuesday in Manhattan. If Fubo wants to win, it will not only have to demonstrate that it has a good chance to eventually win the case on merit, but also that it would suffer irreparable harm if the injunction is not granted.

So what is “irreparable harm,” and how will Fubo prove it? The bar is extremely high. Fubo will have to demonstrate that it will suffer damages that can’t be remedied through monetary payouts because they’re so irrevocable. Fubo says the loss of market share it would suffer from the launch of Venu would be irreparable, but it must convince Judge Garnett of that.

Fubo also contends that if it were driven from the marketplace by Venu, it would lead to higher prices and less competition. Another facet of Fubo’s case is that it and other cable channel distributors have not been allowed by channel owners to create smaller channel packages on the scale of Venu, because channel owners like Disney, Fox and WBD have traditionally forced them to include other, less popular channels in the same packages as popular sports networks.

Fubo CEO David Gandler has previously said the company is in a “duel to the death” against Venu, and has kept up that level of rhetoric essentially since the streamer was first announced back in February.

What Will Disney, Fox and WBD’s Counter-Arguments Be?

Disney, Fox and WBD have already given a preview of their case in their response to Fubo’s injunction request in late July. Calling Fubo a “weak competitor,” the companies took the position that it has never offered a truly innovative or unique product, and that granting the injunction would hinder competition instead of helping it.

“Innovation would be thwarted, [and] sports fans would be deprived of a new, lower-cost option for watching games,” one filing by the defendants reads.

They will also argue that Fubo’s past financial struggles show that the introduction of Venu won’t be the sole cause of its downfall, especially in the environment of cord-cutting that now exists. Even if Fubo were able to prove harm, they argue, that harm could be remedied by a financial payout, which would mean the irreparable harm Fubo needs to get an injunction would not exist.

Key figures from each company are expected to testify, including Disney CEO Bob Iger and ESPN chairman Jimmy Pitaro. It’s likely that the three companies building Venu would have liked to announce a launch date for the streamer as part of their quarterly earnings reports this week, but that announcement may have to wait until they know if the injunction will be granted or not.

Venu will hit the market at a price of $42.99 per month if it does make it to customers. It will offer sports content from 14 channels, as well as ESPN+.