Fubo and Venu Clash in Court as Injunction Decision Nears

Will Venu Sports be allowed to launch by the end of the month? That’s the question on the minds of cord-cutting sports fans and entertainment analysts alike these days. The joint venture service which combines 14 different sports-themed channels on one platform is staring down the barrel of a lawsuit from Fubo, which claims that the service violates federal antitrust laws. Judge Margaret Garnett is presiding over the case in U.S. District Court and is expected to rule on whether Fubo’s request for a preliminary injunction will be granted in the coming days.

Key Details:

• Judge Garnett will next review post-hearing briefs filed by both sides on Tuesday.
• The bar for granting a preliminary injunction is quite high.
• If the injunction is granted, Disney, Fox, and WBD may have to reconsider whether Venu is a good idea at all.

The preliminary injunction hearings began last week and officially wrapped up on Monday. Essentially, Fubo is asking the court to prevent Disney, Fox, and Warner Bros. Discovery from selling Venu to the public while it continues to try to prove that the streamer is in violation of antitrust statutes.

Executives from all three companies involved in Venu were called to testify during the hearings. ESPN chairman Jimmy Pitaro was forced to admit that internal documents generated by his company show that a significant majority of Venu’s audience is likely to be siphoned from current pay-TV distributors, such as customers who are now signed up for Fubo but who will be tempted to cancel by Venu’s $42.99 introductory price.

On Tuesday, Fubo and Venu’s backers both had the chance to file post-hearing briefs, which are essentially summaries of their strongest arguments as to why an injunction should or should not be granted. Judge Garnett will spend the coming days reviewing those briefs and all the arguments made during the hearings before delivering her decision. However, it is possible that Venu will launch before that happens; Disney, Fox, and WBD plan to launch it before the end of August and, in closing arguments, Fubo alluded to an Aug. 23 launch date, but Judge Garnett may not make her decision until after that happens.

What Comes Next for Disney, Fox, WBD if Injunction is Granted?

The good news for Disney, Fox, and WBD is that the bar for granting a preliminary injunction is fairly high. Such holds are meant to be “extraordinary and drastic” remedies to prevent irreparable harm from being done to the company requesting the injunction, and Fubo will have to demonstrate that it would suffer such harm if the injunction is not enacted.

If it is, however, it could mean the end of Venu altogether. A preliminary injunction would stop the three companies from trying to sell the product until the case goes to trial and a verdict is reached on whether it violates antitrust laws. Such a trial likely wouldn’t even begin until 2025 and could take months or even years to complete once it starts. If the injunction is put in place, Venu could appeal, but even that process would almost certainly put a perspective launch after the start of the college football and NFL seasons.

At that point, the three companies responsible for Venu would have to examine whether it was worth it to continue paying the legal fees necessary to carry the trial through to completion, or if they should just end up throwing Venu on the scrap heap. That would be a costly decision as Disney, Fox, and WBD have already each spent $400 million to build Venu so far, and that money would be essentially lit on fire if they decide to mothball the service.

In short, there’s an awful lot riding on Judge Garnett’s decision as to whether Fubo’s injunction request will be granted. Her ruling should be handed down in the next few days, and whether or not she grants it will undoubtedly have wide-ranging implications not just for Fubo, but for the sports broadcasting landscape as a whole.