Electronic Arts, Inc. (EA) makes and sells the video game Madden NFL, which allows users to play virtual games between National Football League (NFL) teams, both current and "historic." EA pays a fee to the NFL to use the likenesses of current players. As a "sweetner," the NFL agreed to allow EA to use the likenesses of former players without paying any licensing fee. The NFL has existing contracts with the former players. Those contracts contain the following provisions:

• Former players are paid a flat-fee by the NFL for the NFL to use their likenesses for promotional and marketing purposes.
• The NFL can amend or modify the contracts at any time without the former players' consent.
• If a former player challenges the NFL's use of the former player's likeness, the NFL can revoke/rescind the contract and can immediately cancel the player's retirement payments made through the NFL's player retirement program.

The former players filed a suit in a federal district court against EA and the NFL, alleging a violation of their "rightof publicity" and a breach of contract claim. EA filed a motion to strike the complaint, arguing EA's use of their likenesses was an "incidental use" under the First Amendment, or in the alternative, was permitted by the former players' contracts with the NFL because EA is a beneficiary of those contracts. The NFL filed a motion to strike the complaint, arguing that it had not violated any of the existing contracts' provisions, or in the alternative, had not breached any of its duties to the former players.

CONSIDER THESE ISSUES

1. What constitutional clauses/laws are applicable to this scenario and why?
2. What common law concepts and/or elements are applicable to this scenario and why?
3. Address the position(s) and/or argument(s) of the EA, NFL, and former Players.