Sony has made a suspicious claim about Microsoft and their video game exclusivity policies in their latest response to the CMA about the Microsoft – Activision deal.
On page 4, of their response to the CMA’s provisional findings, they state this (edited for clarity):
“Microsoft is fond of arguing that, with its prior acquisitions, it did not make the existing, already released games it acquired exclusive to Xbox. But the foreclosure concern in this case is not about past releases of Call of Duty.
It is about the impact of Microsoft making new Call of Duty releases (which are launched every year) exclusive, as it has done for the new releases of Starfield and Elder Scrolls following the acquisition of ZeniMax in 2021.
As the PFs (CMA’s provisional findings) explain, these releases were announced in 2018 and were not expected at that time to be Xbox exclusives. It was only after acquiring ZeniMax that Microsoft’s Phil Spencer revealed that, all along, the deal had been about “delivering great exclusive games” for Xbox.”
So, Sony is making the claim that they hid Microsoft’s intent to have Zenimax games be made exclusive to the Xbox platforms when they acquired that game studio, and then submitted that acquisition to regulator scrutiny.
Apparently, Sony either believes or knows for sure that the CMA was not able to fully scrutinize this aspect of the Microsoft – Zenimax deal before that was approved.
The FTC made a similar claim in their lawsuit blocking the current Microsoft – Activision deal. This time, they stated that Microsoft deliberately lied to the EU when they had investigated that deal.
But as you may remember, the European Commission responded to the FTC. The EU pointed out that they did not request any remedies or conditions to approving the Microsoft – Zenimax deal on purpose.
The EU decided that there were no regulatory concerns for Microsoft purchasing Zenimax, so they really didn’t ask Microsoft to make any promises about exclusivity or anything.
On Microsoft’s end, their position is to decide on the exclusivity of their games on a case-by-case basis. They did say this in September in regards to Bethesda games, and they reiterated this position this year, this time when it comes to the Activision deal.
If the CMA had not truly anticipated that Microsoft would make their games exclusive, as Sony claimed, that would actually be a sign of failure on their part, as the European Commission did not neglect that aspect.
But this may be more of a case of framing on Sony’s part, as they knew full well this document would be made public. Whether the CMA actually believes that they were duped by Microsoft, or they simply came to different conclusions than the EU, is probably going to remain a matter of private knowledge. But we won’t have to wait long to learn the CMA’s final decision.
