The CMA believes the Merger could allow
Microsoft to make ABK content, including Call of Duty, exclusive to Xbox or Game Pass, or otherwise degrade its rivals’ access to ABK content, such as by delaying releases or imposing licensing price increases. This type of concern is known as ‘input foreclosure’, where a firm uses its control of an important input to harm its rivals.
27. The CMA examined internal documents and economic analyses to assess whether
Microsoft would have an incentive to use ABK’s content to foreclose rivals. The CMA did not limit its analysis to an assessment of the short-term or ‘static’ costs and benefits to Microsoft of engaging in these strategies. Rather, the CMA considered
Microsoft’s broader strategies, as evidenced by its internal documents and historical course of dealing following similar transactions in the past. The CMA found that the potential strategic benefits to
Microsoft of using ABK’s content to foreclose rivals— such as expanding the Game Pass user base and strengthening network effects in its gaming ecosystem—could outweigh any immediate losses in terms of licensing revenues. The CMA notes that
Microsoft has followed this approach in several past acquisitions of gaming studios, where it made future game releases from those studios exclusive in consoles to Xbox (such as the upcoming Starfield and, based on Microsoft’s public statements, Elder Scrolls VI from Bethesda, a studio Microsoft acquired as part of its USD 7.5 billion acquisition of ZeniMax in 2021).
28. The CMA believes that in the short- to medium-term, the main rival that could be affected by this conduct would be Sony. Evidence suggests that
Microsoft and Sony compete closely with each other in terms of content, target audience, and console technology. Nintendo, on the other hand, competes less closely with either of Sony or Microsoft, generally offering games that focus more on ‘family fun’ and innovative ways of playing (eg the Wii Fit board) and does not currently offer any Call of Duty games on the
Nintendo Switch.
29. PlayStation currently has a larger share of the console gaming market than Xbox, but the CMA considers that Call of Duty is sufficiently important that losing access to it (or losing access on competitive terms) could significantly impact Sony’s revenues and user base. This impact is likely to be felt especially at the launch of the next generation of consoles, where gamers make fresh decisions about which console to buy. The CMA believes that the Merger could, therefore, significantly weaken Microsoft’s closest rival, to the detriment of overall competition in console gaming.
30. As the market for multi-game subscription gaming services grows,
Microsoft could use its control over ABK content to foreclose rivals, including recent and future entrants into gaming as well as more established players such as Sony. Absent the Merger, ABK games would in principle be available to any multi-game subscription service. The CMA recognises that ABK’s newest games are not currently available on any subscription service on the day of release but considers that this may change as subscription services continue to grow. After the Merger,
Microsoft would
Page 6 of 8gain control of this important input and could use it to harm the competitiveness of
its rivals. As the multi-game subscription market is still in its infancy, the effect of the
Merger could be to tip or significantly increase concentration in the market in
Microsoft’s favour before future rivals have a chance to develop. The CMA therefore
believes that the Merger gives rise to significant competition concerns in multi-game
subscription services (including cloud gaming services, to the extent these are
distributed through multi-game subscription services).
What could be the impact of the merger on cloud gaming services?
31.
In the longer term, many market participants expect cloud gaming to grow and for
gamers to shift from console gaming to cloud gaming on a range of devices. This
market is growing rapidly and has seen several new entrants that were previously
not active in console gaming, including cloud platform providers, such as Google
and Amazon, and game developers such as Ubisoft.
32.
Microsoft already has a combination of assets that is difficult for other cloud gaming
service providers to match. By having a large and well-distributed cloud
infrastructure, Microsoft will be able to host games on its servers on preferential
terms and reach gamers throughout the world without having to pay a fee to third-
party cloud platforms. By having Windows, the OS where the vast majority of PC
games are played,
Microsoft can stream games from Windows servers without
having to pay an expensive Windows licensing fee and may be able to design and
test games made for Windows more effectively than rivals. And by having an
existing console ecosystem,
Microsoft has an existing user base of gamers to which
it can promote its cloud gaming services, as well as a range of popular games that it
can offer.
33. The Merger would, therefore, bring together the company in a uniquely strong
position to offer cloud gaming services with one of the industry’s strongest gaming
catalogues. The CMA is concerned that, by leveraging ABK’s content and
Microsoft’s wider ecosystem, Microsoft will have an unparalleled advantage over
current and potential cloud gaming service providers. This could result in increased
concentration in cloud gaming services or the market ‘tipping’ to Microsoft, and
ultimately deny consumers the benefits of competition between new and emerging
providers vying to succeed in cloud gaming. The CMA recognises that, if
Microsoft
were to significantly increase its market power in cloud gaming services, this could
have knock-on effects on independent game developers and publishers who
compete against Microsoft’s own gaming portfolio, and who could be disadvantaged
in a number of ways, such as by having to pay higher fees or by being demoted on
Microsoft’s gaming ecosystem.
34. The CMA therefore believes the Merger could substantially reduce competition in
cloud gaming services.
Page 7 of 8What happens next?
35. As a result of these concerns, the CMA believes that the Merger gives rise to a realistic prospect of an SLC in gaming consoles (together with their digital storefronts), multi-game subscription services, and cloud gaming services. The CMA is therefore considering whether to accept undertakings under section 73 of the Act.
Microsoft and ABK have until 8 September 2022 to offer an undertaking which might be accepted by the CMA. If no such undertaking is offered, or the CMA decides that any undertaking offered is insufficient to remedy its concerns to the phase 1 standard, then the CMA will refer the Merger for an in-depth phase 2 investigation pursuant to sections 33(1) and 34ZA(2) of the Act. Following such a further detailed investigation, the CMA would reach a final decision as to whether or not the Merger gives rise to an SLC.