Dish Network has countersued Disney and ESPN, alleging that the media giant is using it market dominance to crush competition and stifle innovation, violating antitrust laws and breaching its contract with the pay TV operator, after it filed a lawsuit over Sling TV’s Sling Passes.
Sling debuted the passes in mid-August, and the mini-bundles offer access to the streaming service’s full bundle for a set period of time: one day, weekend, or a full week. The mini-bundles begin at $4.99 — and a full Sling subscription is $45/month.
“Sling TV’s new offerings, which they made available without our knowledge or consent, violate the terms of our existing license agreement,” a Disney representative told TheWrap in August. “We have asked the court to require Dish to comply with our deal when it distributes our programming.”
But a judge would rule in favor of Dish in November, arguing that Disney did not demonstrate it would suffer irreparable harm and that it had not shown a likelihood of success on the merits of its breach-of-contract claims.
In its counterclaim filed on Friday in the U.S. District Court for the Southern District of New York, Dish said it had “no contractual obligation to consult” with Disney or ESPN prior to launching Sling Passes. It also admitted that a limited number of promotional materials included the phrase “with no subscription,” which was inaccurate.
It specifically accuses Disney of violating the Sherman Act by condition access to “must-have” sports (ESPN) on the purchase of certain low-value channels, resulting in an illegal tie that forces Sling to “carry content customers don’t want, inflating costs and blocking affordable packaging.”
It also says that Disney’s acquisition of Fubo and the creation of the ESPN-Fox One Bundle violate the Clayton and Sherman Acts by eliminating competition. Additionally, Dish argues that Disney is attempting to monopolize the skinny sports bundle market by launching ESPN Unlimited, acquiring Fubo and enforcing restrictive contracts, ensuring it is the only provider of flexible sports packages, keeping prices “artificially high” for consumers.
The countersuit also claims Disney failed to extend favorable terms to Dish and Sling despite doing so for its competitors, violating their carriage agreement’s most favored nation” (MFN) clause. For example, Dish claims that YouTube TV has a “non-renewing 20 minute free preview offering” that allows users to watch 20 minutes of content with no commitment.
Dish is seeking unspecific monetary damages, a judgment that Disney and ESPN’s actions violate U.S. antitrust laws and an injunction to force the “unwinding” of Disney’s acquisition of Fubo and the ESPN-Fox One bundle.
Representatives for Disney did not immediately return TheWrap’s request for comment.
In addition to Disney, Warner Bros. Discovery has similarly sued Dish over the passes for violating their existing licensing agreement.
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