JD SPORTS / FOOTASYLUM Initial Phase 2 Submission

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JD SPORTS / FOOTASYLUM Initial Phase 2 Submission JD SPORTS / FOOTASYLUM Initial Phase 2 Submission SUBMITTED ON BEHALF OF JD SPORTS FASHION PLC 14 NOVEMBER 2019 TABLE OF CONTENTS EXECUTIVE SUMMARY ......................................................................................................................................................... 1 I. Overview ................................................................................................................................................................... 1 II. The Parties have quite different "sweet spots" in their brand and own-label representation .......................... 2 III. The Merger does not alter the fact that global brands shape branded retail competition ................................ 3 IV. A worsening of the consumer offer would not survive dynamic demand forces and brand and supply-side disruption ................................................................................................................................................................. 5 V. The Merger will not remove a close constraint on JD Sports' pricing or non-price offer ................................. 5 VI. Footasylum's small share does not even account for its declining state absent the Merger ........................... 6 VII. The Merger preserves a differentiated customer offer – with a much-improved brand position, scale, and IT and back office – to the benefit of consumers ...................................................................................................... 6 VIII. Conclusion ............................................................................................................................................................... 6 INTRODUCTION ..................................................................................................................................................................... 7 I. Volatility of social media-driven fashion trends .................................................................................................... 7 II. Cultivation of strong sports and fashion brand preferences ............................................................................... 9 III. E-commerce drivers: Instagram, mobile-commerce apps, webstores .............................................................. 10 IV. Conclusion ............................................................................................................................................................. 12 PART A - MARKET DEFINITION, COMPETITOR SET AND DIFFERENTIATION ............................................................. 13 I. Introduction ............................................................................................................................................................ 13 II. The Phase 1 analysis: examples of the binary fallacy in action ........................................................................ 15 III. A fresh approach at Phase 2 ................................................................................................................................. 23 IV. Separate markets for footwear and apparel ........................................................................................................ 24 V. Segmentation within footwear and apparel ......................................................................................................... 24 VI. Multichannel: online vs. in-store .......................................................................................................................... 27 VII. Multi-brand vs. mono-brand retailers ................................................................................................................... 31 VIII. Geographic market ................................................................................................................................................ 32 PART B - THE MERGER HAS NO IMPACT ON BRANDS’ DTC AND VERTICAL CONSTRAINTS THAT IN TANDEM DISCIPLINE THE PARTIES’ RETAIL OFFER ........................................................................................................ 33 I. Nike and adidas are must-stock brands for sports inspired retailers ............................................................... 34 II. Nike and adidas are each aggressively expanding digital e-commerce (DTC) that bypasses and constrains wholesale channel resellers .................................................................................................................................. 36 III. Branded suppliers exercise tight control over PQRS of UK sports-inspired retailers .................................... 41 IV. The Merger has no impact on the array of constraints applied by the global brand owners over JD Sports’ resale activity ......................................................................................................................................................... 45 V. The brands already sponsor entry and expansion and would readily shape retail market structure further if incumbent retailers under-perform ...................................................................................................................... 47 PART C - BEYOND THE DTC OFFENSIVE OF THE BRANDS: CONSTRAINTS FROM OTHER RETAILERS ................ 49 I. Dynamic actions by UK and pan-European retail rivals in sports footwear ..................................................... 49 II. Apparel rivals are growing and diversifying ........................................................................................................ 55 III. Customers have a wealth of choice ..................................................................................................................... 56 PART D - THE MERGER HAS NO "PQRS" EFFECT .......................................................................................................... 57 EXECUTIVE SUMMARY I. The increment in share resulting from the Merger is low ................................................................................... 57 II. Footasylum does not affect JD Sports' national pricing, product range or other non-price decisions ......... 58 III. JD Sports does not affect Footasylum's national pricing, product range or other non-price decisions ....... 59 PART E - THE MERGER OFFERS SYNERGY BENEFITS RELATIVE TO THE SEVERE STANDALONE PROBLEMS OF FOOTASYLUM ........................................................................................................................................................ 61 I. Background ............................................................................................................................................................ 61 II. Footasylum's standalone position in the counterfactual ................................................................................... 62 III. JD Sports' perspective on Merger rationale and benefits .................................................................................. 62 A40423817 3 EXECUTIVE SUMMARY EXECUTIVE SUMMARY I. Overview (1) As explained in this initial submission (the “Response”), the acquisition by JD Sports Fashion plc ("JD Sports"1) of Footasylum Limited ("Footasylum" and together, the "Parties") (the "Merger") has not resulted, and cannot be expected to result, in a substantial lessening of competition ("SLC") in the UK. (2) The unilateral effects theory of harm advanced in the Issues Statement and Phase 1 Decision (for each of footwear and apparel, in-store and online) is that the Merger may substantially reduce competition on each market (segment) at the UK national level. This is broadly based on two premises: first, that JD Sports is a large and successful UK sport-inspired retailer (which is true, but not probative of the SLC question) and second, that the Merger eliminates one of few national rivals (which is incorrect). (3) In essence, the theory of harm fails to fit the facts in each market (segment) on two counts: • The theory does not adequately (or at all) explain or account for the key constraints – horizontal and vertical – faced by JD Sports and Footasylum pre-Merger; and • The theory also fails to capture why and how the acquisition of Footasylum (a small rival in a weak condition) materially affects these constraints leading to a likelihood of consumer harm. (4) In summary, the commercial and competitive reality is that: (i) Brands set the competitive framework especially in footwear The characteristics of this sector are unlike other retail sectors, in that JD Sports (and Footasylum) are constrained by the major brand owners (specifically Nike and adidas) on which each is dependent. The major brand owners not only constrain horizontally as JD Sports' fastest-growing direct competitors at the retail level, but also substantially influence (i) the structure of the retail market via their selective distribution models; and (ii) individual retailers' setting of price, quality, range or service ("PQRS") within it; (ii) The markets in question are dynamic; demand is volatile and trend-driven and competition is intense Given that the global brands stimulate demand in particular through social media and use of influencers via apps and other digital tools aimed at a young audience, footwear and apparel markets are both characterised by dynamic and volatile demand and intense competition (shaped by the brands' selective distribution systems and fast fashion alternatives); (iii) Given intense market-wide rivalry it makes sense that the Parties' focuses and
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