President Joe Biden’s Justice Department and New York Attorney General Letitia James, along with the Democratic attorneys general of 15 other states and the District of Columbia, argue in new court filings that Walt Disney, ESPN, Fox, Warner Bros. Discovery and Hulu’s plan to roll out the Sports-centric streaming platform Venu Sports should be rejected.

The DOJ and AGs filed amicus briefs with the U.S. Court of Appeals for the Second Circuit on Tuesday, asking the court to affirm U.S. District Judge Margaret M. Garnett’s grant of a preliminary injunction to FuboTV in August. Unless vacated by the Second Circuit or overturned through an out-of-court settlement, the injunction will remain in effect at least until a trial, likely not until 2025 or later, and will block Venu Sports’ release.

Garnett found that Venu Sports was problematic under antitrust law because competitors would have to band together to place their live sports content on one platform. Although the live sports content on Venu Sports would not be exclusive and Venu Sports would lack CBS, NBC, CNN, Fox News and other sports and non-sports networks, the platform could enable Fubo for $42.99 per month – which so far Wasn’t possible Offer a thin live sports package – out of business.

Also problematic was that the defendants agreed to “stay away” from investing in similar streaming platforms and negotiated a non-compete agreement that would help preserve Venu Sports as a unique product.

In its brief, the DOJ emphasized the defendant companies’ “dominant” position in the broadcast of live sports broadcasts. According to the DOJ, the defendants collectively control approximately 54% of U.S. sports rights and more than 60% of nationally broadcast sports rights. The DOJ argues that Venu would give defendants even greater dominance in the distribution of sports-related TV content to consumers.

Additionally, the DOJ emphasized that Garnett found “overwhelming” evidence that Venu would have “anti-competitive effects” because the defendants had agreed to “steer clear of a (Venu)-like platform” and had lower incentives “to do so.” rivals to work together”. Developing a sports product or bringing your own products onto the market.”

In this sense, the DOJ fears that Venu could authorize defendants to “impose price increases and bundling requirements on competing retailers.”

James and her colleagues make similar points in their amicus brief. The brief seeks to require the defendants to require Fubo and other distributors to “purchase licenses for content packages, including non-sports content.”

They also question why Fubo would be required to “distribute and pay affiliate fees for Disney Channel” in order to obtain a license for ESPN, “even if Fubo’s sports-focused subscribers don’t want Disney Channel and would rather purchase sports-only products.” .” could be offered at lower prices than the bundled products.”

James also challenges the defendants’ argument that they are not legally required to give Fubo the opportunity to deliver a scarce live sports package or to meet any conditions. James says a no-duty-to-deal defense “applies only to a defendant’s unilateral dealings with others” and does not protect a joint venture like Venu Sports from antitrust scrutiny.

Other AGs have a different perspective on these antitrust issues. In September, the Republican attorneys general of six states (Florida, Alabama, Iowa, Kentucky, Mississippi and South Carolina) filed an amicus brief arguing that Garnett and Fubo were wrong about the law. They insist that Venu Sports would promote competition in the market by offering a lower-cost alternative to “price-conscious sports fans who have opted out of, or were never part of, the traditional TV ecosystem.” The AGs also agree with the defendants that they are not legally obliged to offer Fubo the same terms.

Similarly, former Federal Trade Commission Commissioner Joshua Wright wrote on his Substack: Performance competitionthat “every now and then an antitrust decision comes along that is so poorly reasoned and deviates from existing law that it is difficult to understand.” Judge Garnett’s decision in FuboTV vs Disney et al., ladies and gentlemen, is exactly such a decision.”

Wright, an economist and antitrust attorney, wondered why Garnett would issue an injunction when the judge acknowledged, as Wright put it, “that Venu TV would increase competition and benefit consumers.”

Whether the dueling briefs from the Democratic and Republican AGs will impact the Second District remains to be seen. An interesting factor is timing. It may take a while for appeals to be processed. It stands to reason that after President-elect Donald Trump’s inauguration on January 20, his Justice Department could submit an amicus brief more in line with Republican caucus views – perhaps especially given the animosity between Trump and James, whose office sued Trump for fraud.

Meanwhile, sports fans wait for the chance to buy a scarce live sports package.

(This story has been updated to correct the name of Joshua Wright’s newsletter referenced in the 12th paragraph.)