Venu, FuboTV Both Say Judge Has Power to Kill Their Business

At the close of a four-and-a-half-day hearing Monday, a federal judge declined to announce her decision on whether to grant an injunction FuboTV seeks to stop Venu Sports from launching. 

Venu, the much-anticipated live sports TV offering that will boast 14 channels from Disney, Fox, and Warner Bros. Discovery, aims to launch Aug. 23, according to a claim made in the courtroom by Tom Schultz, a lawyer for Fubo. Venu declined to comment on that specific date. 

Judge Margaret Garnett said she would be “mindful of the calendar, I am very mindful the parties need certainty.”

While Garnett is not obligated to rule on anyone’s timeline, that comment sure sounds like we will know within the next 10 days if Venu will be permitted to launch or blocked by Fubo.

Fubo, arguing that Venu would violate antitrust law, sued the three media giants weeks after their Feb. 6 announcement unveiling plans for the app. Fubo’s core gripe is the three media companies refuse to license out just their sports channels to distributors like Fubo, but will do so for Venu. That dynamic will spark a wave of cord-cutting at pay TV distributors, Fubo argues, by sports fans in favor of the lower-priced Venu.

What happens next? On Monday night the sides were scheduled to file 10-page post-trial briefs summarizing their positions. When Judge Garnett eventually rules, each side will have the right to appeal her decision to the 2nd Circuit. 

If she grants the injunction, Disney, Fox, and WBD would possibly seek emergency relief in the higher court. “A preliminary injunction would terminate the joint venture,” WBD’s counsel Andrew Levander warned the judge.

By contrast, Schultz told the judge if Fubo does not get the injunction, it will “run out of cash by the first quarter of next year.” That would mean insolvency, he said.

In an effort to prove the injunction is in the public interest—one of the prongs required to get an injunction—Schultz cited a letter sent by Sens. Elizabeth Warren (D., Mass.), Bernie Sanders (I., Vt.), and Rep. Joaquin Castro (D., Texas) to the Justice Department seeking an investigation into Venu for possibly violating antitrust and communications laws.  

Lawyers for Disney, Fox, and WBD argue Venu is actually pro-competitive by introducing another player into the pay TV market, and that it wouldn’t make sense for Venu to cannibalize pay TV distributors because the three companies would earn more from distributor subscribers than from Venu subs.

Venu plans to charge $42.99 per month for a subscription. That is lower than the $50 a month the three companies’ early plans delineated. The Venu management team chose the lower price, surprising the three partner companies, Disney outside counsel Wes Earnhardt said, in an effort to show the offering is pro-competitive.