Hart (plaintiff) was a successful quarterback for the Rutgers University National Collegiate Athletic Association (NCAA) Division I football team. Electronic Arts, Inc. (EA) (defendant) was a videogame company that created the videogame NCAA Football. The game included avatars for actual NCAA football players that closely resembled their real-life counterparts and included their actual statistic and biographical information. The 2004–2006 versions of NCAA Football included an avatar for Hart that matched Hart’s physical and biographical characteristics. Although players of the game had the option of altering certain characteristics of the Hart avatar, the closely matched avatar is the default offering. Hart sued EA, claiming a violation of his right to publicity. The district court granted EA summary judgement on the ground that the First Amendment protected EA’s use. Hart appealed.