By: Josh Goldberg, Esq. and Patricia L. Gannon, Esq.
International college athletes have been restricted from earning Name, Image, and Likeness (“NIL”) compensation with the ease of their U.S. counterparts. While American athletes can readily engage in third-party NIL deals, those on student visas (F-1) are limited to on-campus employment and therefore barred from participating in NIL deals on U.S. soil.
Navigating the intricacies of F-1 visa work regulations can reveal disparities in employment opportunities among athletes on the same team, due to the specific requirements of Curricular Practical Training (CPT) and Optional Practical Training (OPT). As referenced in a previous blog post , to qualify for CPT, the proposed work must be directly related to a student’s major area of study and have a curricular requirement. CPT is only available while a student is pursuing their degree. Once the student completes the degree requirements, the student has to apply for optional practical training. As a result of the current F-1 visa work rules, certain athletes on the same team have vastly different opportunities available to them. Foreign students may be unable to earn a profit from their NIL even if they appear at events like autograph signings and other common events. The U.S. Citizenship and Immigration Services (USCIS) does not provide much guidance to the schools or to the foreign student-athletes and a recent February 2024 decision by the National Labor Relations Board (“NLRB”) Region 1 director ruled that men’s college basketball players at Darmouth are employees – which can adversely affect college athletes on F-1 visas.
Although Dartmouth is taking an appeal of this decision, it is of growing concern for foreign student-athletes. F-1 visas are specifically for students – it is not a work visa and as indicated there are restrictions towards CPT and OPT employment authorization for students. By classifying student-athletes as employees, this puts them at odds with the F-1 student visa classification. Similar cases are in front of regional offices of NLRB involving USC Men’s and Women’s basketball and football players as well as a recently filed complaint involving Notre Dame athletics. Congressional action is needed to clarify the massive ambiguity that will truly dictate the future of foreign student athletics.
International College Athletes Do Not Have the Same NIL Opportunities Many F-1 students who do not want to violate their F-1 status cannot benefit like other student-athletes. Purdue’s Zach Edey, a Canadian, who was named back-to-back national college basketball player of the year, said in a press conference before the national championship game earlier this month, “I feel like I’m missing out on a lot of money,” and “It’s not like I can go film a commercial in West Lafayette.”
Edey has luckily been able to monetize part of his NIL through licensing his NIL to The NIL Store, which is powered by Campus Ink, and hosts a merchandise store featuring Edey and many other college athletes’ custom jerseys, shirts, hoodies, and accessories. As Edey is not actively participating in this business venture, in which he can’t even promote his own merchandise while in the US, it’s arguably passive income and therefore not in violation of the F-1 visa. Edey is The NIL Store’s top-selling athlete of all time.
Each university has an office dedicated to assisting international students and each international student-athlete should consult with their respective university and/or outside legal counsel before entering into any NIL deals in order to not jeopardize their visa status.
A New Federal Bill Can Benefit International College Athletes of Visas Last week, a new federal bill was introduced by Representative Mike Flood (R – Nebraska) and Representative Valerie Foushee (D – North Carolina), titled “Name, Image, and Likeness for International Collegiate Athletes Act,” which proposed to amend the Immigration and Nationality Act to provide F visas and employment authorization for international student-athletes who enter into endorsement contracts for the commercial use of their names, images, and likenesses.
Many proposed federal bills for NIL reform include sections dedicated to international athletes. However, many of these bills include other clauses, such as athletes not being deemed employees, revenue sharing between universities and college athletes, collectives needing to register with the Federal Trade Commission, limitations on transferring, the creation of a standard NIL contract, and other restrictions that are unlikely to get bipartisan approval as Congress continues to debate and attempt to potentially shape the future of college sports.
The proposed bill above is pretty short and straightforward and would allow “a nonimmigrant who obtains the status of a nonimmigrant under clause (iv) of section 101(a)(15)(F) [of the Immigration and Nationality Act] shall be eligible for employment authorization for the purpose of engaging in activities pursuant to an endorsement contract for the commercial use of the nonimmigrant’s name, image, or likeness.”
Up until this point, international college athletes have either had to participate in passive NIL licensing opportunities or travel outside of the United States to participate in endorsement and commercial shoots or other active promotions.
A few college athletes have succeeded in applying for an extraordinary visa (O-1) which is a nonimmigrant visa for individuals who possess extraordinary ability in the sciences, arts, education, business, or athletics, or who have a demonstrated record of extraordinary achievement in the motion picture or television industry and have been recognized nationally or internationally for those achievements. However, obtaining an O-1 visa is extremely difficult and can be an expensive process.
Hansel Enmanuel who currently plays college basketball for Austin Peay, was one of the first college athletes to receive an O-1 visa in October 2022, when he was playing basketball at Northwestern State. Enmanuel, who lost one of his arms when he was six years old fits the definition of extraordinary – and was able to grow a large social media following even before playing college basketball. Enmanuel, despite playing one-handed has been able to compete at the highest level and throw down highlight reel dunks. Enmanuel now boasts 1.6 million followers on Instagram and has NIL deals with The Rock’s ZOA Energy, Adidas, Oakley, and other brands.
If the Name, Image, and Likeness for International Collegiate Athletes Act is passed, international college athletes would have the same freedom to capitalize on their NIL as all other college athletes with American citizenship.
As many other aspects of collegiate sports get played out on the courts, one thing most people can agree upon and should receive bipartisan approval is allowing international athletes to capitalize on NIL.
If you are an international athlete seeking a visa or NIL advice or a brand or agency looking to work with international athletes, our team of sports attorneys and immigration attorneys at Greenspoon Marder LLP can assist.
