They seem to be posturing that they will kill the deal with a block in this case. MS was able to offer behavioral remedies, something the CMA already said in their PF that they are not particularly interested in seeing unless it approximates their stated Structural Remedies, which are divestment of CoD (or divestment of Blizzard & Activision).
MS' proposed behavioral remedies seem to be the 10 year licensing agreement that they've shown to the EC, as well as offering to financially form a 3rd party group to assess technical parity. If the CMA is signaling privately that this isn't enough, and the leak from the outlet I just posted backs that up, then its clear their remedies aren't meeting the bar.
I'm dismissive of an independent group funded by MS because it doesn't speak to any of the findings the CMA actually listed in their PF.
The CMA had 3 primary issues.
- Impact this deal will have on the nascent cloud market
- Impact this deal will have on Gaming Subscription Market
- Impact this deal will have on the console market.
For the 3rd point, the CMA used studies that they had a 3rd party go out and conduct, as well as one Sony provided. MS seemed to have done a study of their own and seemed to have presented it last week to address the point about the console market, but the CMA is not going to take the word of the organization they are assessing over their own findings.
As for point 2, in the PF, the CMA said that they no longer feel that Gaming Subscription Services represent a wholly new way for consumers to get access to gaming software, and is more an extension of the current software distribution paradigm, so this point already resolved itself.
Now as for point 1, MS didn't offer anything to address this. And no - NVidia signing the 10 year deal doesn't do anything for this, because there are a bunch of complexities regarding GeForce Now and whether they are even considered a competitor in the cloud gaming market, since their service is entirely rental based.
The CMA proposed Structural Remedies specifically because they didn't see any other form of remedies that would address their concern. MS effectively ruled this out back in February when they said, during their presentation to the EC, that they will not go through with the purchase if it meant divesting CoD. The formation of an independent group doesn't even begin to address the other ways that MS could easily get around it, stuff that the CMA specifically cited as their reasoning why divestment is the preferred option.
MS needed to create a set of remedies that could begin to approximate the structural remedies the CMA proposed. The 10 year deal and the independent technical assessment group were what they presented. That isn't enough. Heck, one of the things that could've allowed MS to get this deal through even now is if they agreed to have a public licensing agreement that anyone can purchase that would give that entity access rights to CoD, no matter what service or platform you are, at a cost that is determined to be a Fair Wage value. That would cut to the heart of this without having to divest. MS didn't go this route cause it would remove MS' ability to promote CoD as being exclusive to the GP service or xCloud. MS also could've agreed to not remove any development resource currently working on CoD to do so, which again, wasn't offered.
That isn't to say MS is incompetent - never once said that. But its clear what value they are seeking to derive from this deal, based purely on the behavioral agreements they are not willing to offer to get it over the finish line.