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Fubo CEO David Gandler traded jabs Tuesday with attorneys Disney and Fox Corp., two of the three media companies behind streaming joint venture Venu Sports.
Last February, Fubo filed an antitrust lawsuit in U.S. District Court in New York against Fox, Disney and Warner Bros. Discovery. The suit alleges the companies behaved as a monopoly in a coordinated effort to run Fubo out of business with a cheaper bundle of sports-focused programming. Fubo then requested a preliminary injunction, which, if granted (a big if), would bar Venu from following through with its planned launch in the coming weeks
At $43 a month, Venu is far cheaper than Fubo’s entry-level subscription, which is $80. The service does not include sports programming from NBCUniversal or Paramount sports programming, the two other big industry players. Still, Gandler repeatedly drew attention to the price differential. “Price is king, and $42.99 is an appealing price for a significant amount of sports,” he said at one point
In nearly two hours under oath, the exec kept his composure as opposing lawyers cross-examined him, occasionally getting in little digs at their case when they aimed to cast doubt on his judgment. While things never boiled over into a confrontation, there were a few pointed exchanges between the sides. Defense attorneys sought to undermine Gandler’s central claim that Fubo had long sought to create a sports-focused bundle but had been rebuffed by the very programmers now teaming on the same concept with Venu.
Andrew Levander, representing Fox, drew attention to Fox’s $24 million investment in the company from 2016 to 2018 and also highlighted the $1.8 billion in losses incurred by the company between 2021 and 2023. “That didn’t have anything to do with the JV partners, did it?” he said.
U.S. District Court Judge Margaret Garnett interceded to pose a couple of questions to Gandler, and at one key point intervened when Levander was pointing out passages from Gandler’s email and Slack messages. Levander characterized those communications as disingenuous, saying Gandler was giving inconsistent or even duplicitous messages to employees, investors and the public at various times
In one instance, Gandler wrote an gushing email of appreciation to an executive at Fox despite also stating in legal filings and his deposition in the case that he felt Fubo had been systematically blocked by Fox and other partners. “You’re a businessperson, aren’t you, Mr. Gandler?” the judge asked. When he agreed, she continued, “You don’t always show your hand when you’re in negotiations, do you?” Gandler allowed a slight smile. “You have to be cordial,” he replied.
In addition to allowing a peek behind the curtain at a pay-TV operator, the hearing also included a few striking counters to the usual public-facing spin around a few aspects of sports and streaming more broadly. Numerous times, attorneys for the defendants acknowledged that WBD will most likely lose rights to the NBA after the 2024-25 season, but they brought it up to note that the void of basketball will devalue the bundle and therefore lessen any perceived threat against Fubo. (That’s hardly the message WBD will be delivering to pay-TV operators when it comes time to negotiate new carriage deals for the soon-to-be-hoops-deprived TNT.)
In another reversal, the $43 price point was described as, in essence, enticing for now but certain to increase (again, not language you’ll see on any promotional brochures). “What happens to that price once you get people in? It goes up,” Disney attorney Wes Earnhardt said in his opening statement prior to Gandler’s testimony. “Anybody with a streaming subscription can tell you that.” Because the price of Venu is likely to ramp up quickly, he added, the JV is “not likely to be a profitable player” and should be viewed instead as “a way to combat the effects of cord-cutting.”
Gandler was one of 19 witnesses slated to take the stand during the preliminary injunction hearing, which is scheduled to run through Friday.
