If you have been following the post-retirement travails of Lance Armstrong, former professional cyclist, cancer survivor and seven-time Tour de France champion, you know that he has found himself in some serious trouble lately. The U.S. Anti-Doping Agency has gathered what officials apparently believe to be a very strong case that Armstrong took illegal performance-enhancing drugs during his reign as the world’s top cyclist. Several members of his former circle of teammates and support staff, including doctors who allegedly administered the drugs, have already provided statements supporting the allegations, and some have themselves been officially found in violation of the drug ban. Now the USADA has threatened to bring the case against Armstrong to arbitration, which it has the power to do under the federal statute creating the agency. The arbitrator could then officially take away Armstrong’s Tour de France titles.
In response to these official allegations, Armstrong has decided to go to court. On Monday, he filed his own 80-page complaint in federal district court in Texas (his home state) against the USADA, alleging that the USADA’s actions infringed upon his right to due process, and tortiously interfered with his contractual and business relationship with the international cycling federation. To everyone’s surprise, however, the federal judge assigned the case, a no-nonsense jurist named Sam Sparks, dismissed the lawsuit the same day, finding that it violated federal rules by including large amounts of extraneous information, and that it appeared to have been written for the improper purpose of “increas[ing] media coverage of this case” and “incit[ing] public opinion” against the USADA — something Judge Sparks would not abide. (See Above the Law’s hilarious description of this “Benchslap” here.) Armstrong was allowed to re-file a more appropriate complaint, however, which he did earlier this week.
What no legal commentator seems to have considered, however (as far as I can tell), is whether Armstrong’s lawsuit is a SLAPP. It certainly has some of the tell-tale signs, including most notably the suit’s questionable merit — the whole theory of the case appears to be premised on a vast conspiracy among the USADA, federal investigators, Armstrong’s former teammates, team managers, and medical personnel, and who knows who else. But does this suit seek to punish or chill the exercise of First Amendment speech or petition activity, as required for it to constitute a SLAPP?
If the suit had been filed in California, I would say probably yes. The suit concerns the USADA’s filing of an official proceeding against Armstrong pursuant to federal law. This official complaint would constitute a statement made in an official proceeding under the California anti-SLAPP law, and therefore exactly the type of petition activity the law was designed to protect. The fact the defendant is a quasi-government entity probably would not matter — government entities also enjoy anti-SLAPP protection, since they perform many important functions relating to the exercise of free speech and petition rights.
This lawsuit, however, was filed in Texas, which recently enacted a strong anti-SLAPP law, but because that law is so new, it is less clear how that statute would be applied here, or if it can be applied at all in federal court. (Federal courts in California apply California’s anti-SLAPP law, at least as to California state law claims, but that does not necessarily mean Texas federal courts will apply the Texas anti-SLAPP law.) In any case, I would not be surprised to see an anti-SLAPP motion in Lance Armstrong’s case, and if so, this case could meet a premature end. I will be very interested to see how such a motion plays out, if filed.