Editor’s note: What follows is an abstract of a presentation made at the Sports and Recreation Law Association conference in Orlando last week by professors Natasha T. Brison, JD (Georgia State University), Thomas A. Baker III, JD, PhD (University of Georgia) and Kevin K. Byon (University of Georgia)
On January 22, 2013, a class action lawsuit was filed in the United States District Court of the Eastern District Court of California alleging that former USA cyclist Lance Armstrong, the Penguin Group, and Random House, Inc. engaged in false advertising in the marketing of Armstrong’s books It’s Not About The Bike: My Journey Back To Life and Every Second Counts (Stutzman, et al. v. Armstrong, et al., Case No.2:13-CV-00116-MCE-KJN).
Based on the Defendants’ scheme to defraud consumers financially by perpetuating the Lance Armstrong brand, the Complaint alleged violations of the Consumers Legal Remedies Act, the Unfair Competition Law, the False Advertising Law, negligent misrepresentation, fraud, and deceit.
Since publication, Defendants repeatedly represented Armstrong’s books as an autobiography and a biography. The books chronicled Armstrong’s story of his return to the sport of cycling to win the Tour de France after overcoming testicular cancer. Throughout the books, Armstrong recurrently denies using banned substances prior to or during his cycling career. However, a doping investigation by the United States Anti-Doping Agency (USADA) resulted in Armstrong receiving a lifetime ban. And on January 17, 2013, Armstrong publicly admitted to using performance-enhancing drugs during each of his Tour de France victories.
Plaintiffs argued that the Defendants advertised and marketed these books as “true, honest works of nonfiction when, in fact, Defendants knew or should have known that these books were works of fiction” and contained false and misleading statements (Stutzman, et al. v. Armstrong, et al., 2013, p.3). Plaintiffs further stated that they would not have purchased the books had they known the true facts of Armstrong’s involvement with sports doping. The Defendants filed an anti-SLAPP Motion to Strike pursuant to California’s anti-SLAPP (strategic lawsuit against public participation) statute which discourages lawsuits that are filed to deter citizens from exercising their political rights. On September 9, 2013, the Judge granted the Defendants’ Motion to Strike based on the fact that the statements made within Armstrong’s books were not commercial speech. Therefore, Armstrong’s books constituted conduct in furtherance of his First Amendment right of free speech.
The purpose of this presentation is to examine the possible use of autobiographies and biographies by sport celebrities as forms of advertising to promote a brand. This presentation will also examine the distinctions between commercial and noncommercial speech in the conflicting contexts of the First Amendment and False Advertising Law.
