Pick your poison: -
Either Nintendo is a competitor in the TV/couch surfing arena, and there is a crossover audience for players who enjoy Elden Ring and Zelda, Xenoblade and Persona or DOOM and…DOOM. And the presence of CoD isn't inherent in platform success OR;
It's a two-horse race with Sony and their only rival Xbox, CoD is essential input on equal terms (lol) and Sony just outsold their one and only rival by 60+ million. Is a substantial lessening of competition even a concern here??
To what end is it the regulator's concern that Nintendo has been more successful in differentiating itself against Sony taking less risks and choosing not to? When predicting the future do you not look at the past? Sony is in a better position today than any competitor ever was when taking risks and trying to adapt.
To expand it a bit further...
If we assume that Nintendo is completely irrelevant to COD here, it still doesn't address the overall question of whether or not COD is vital to Playstation being competitive as a platform.
Let's assume Nintendo is completely irrelevant for a moment. Let's say that it's a two horse race between PS and Xbox, and that Sony is correct in their claim that having access to COD is absolutely vital in order to succeed. Hell, we can go all the way to assuming that not only is having access to COD vital to success, but that there must be parity between that access, such as Sony's stated fears of COD going to Gamepass.
Even if we assume all that... Sony still doesn't have a leg to stand on because they've been enjoying exclusive COD content for years. If Sony's argument is that they must have not only access to COD, but equal access to it as well. Then by their very own claim, they've been guilty of committing anti-competitive behavior by paying Activision for exclusive content and access for years.
We can shift the narrative any which way we want to try and give Sony the benefit of the doubt here. We can shift the narrative not just completely off the page, but off the desk entirely. Ultimately none of it matters because once logic is applied, it all ends up the same.
Either COD is essential to platform success or it isn't.
If it is, then comparing Nintendo is completely relevant because they do in fact have a successful console platform that doesn't have access to COD. It also means that Sony has been knowingly engaging in anti-competitive behavior by paying for exclusive content and features for years.
If it's not, then Sony has no argument at all. It just means that Sony is simply claiming it is in order to maintain it's current advantage to COD going forward.
No matter which way we spin it, it makes Sony look bad, and for good reason. Because they're arguing in bad faith no matter what.