NIL 101 for International Student Athletes

January 4, 2024

In the ever-evolving landscape of collegiate sports, the introduction of Name, Image, and Likeness (NIL) policies has reshaped the way athletes can benefit from their personal brands. While this change has opened up new opportunities for many, there’s a group of athletes left on the sidelines, unable to participate fully in the burgeoning NIL industry: international student-athletes.

NIL policies, which empower athletes to earn income from their image and likeness, have become a game-changer for college sports. However, the situation becomes intricate when international student-athletes are thrown into the mix. There’s a silent but significant issue—more than 24,000 international NCAA athletes are left out of the NIL industry, which represents roughly twelve percent of all college athletes. This exclusion translates to a staggering $28 million in potential earnings voided for Division I International athletes. (Source: Business of College Sports, NCAA

The reasons behind this exclusion are rooted in the complex web of immigration laws and regulations that international students and their educational institutions are subject to. While these laws remain silent on NIL matters, they are quite vocal about penalties for unauthorized employment. Such penalties include the immediate termination of student visa status, deportation, and the potential inability to obtain future visa statuses or permanent legal status in the U.S. Furthermore, federal regulatory changes in this area are infrequent, with most updates coming in the form of policy guidance from the Department of Homeland Security (DHS) and its sub agencies.

The F-1 visa, which is the most common visa for international student-athletes, has restrictions that prohibit most forms of employment. Only three employment options are available, with on-campus employment being the most common and typically limited to 20 hours per week when school is in session. This limits international student-athletes’ ability to engage in off-campus work or to earn income through NIL opportunities in the U.S.

Another opportunity lies with the O-1 visa, a category traditionally reserved for individuals with extraordinary abilities in fields like arts, sciences, and business. However, there’s a compelling case to be made for extending this visa to exceptional athletes, particularly in Division I athletics. Take, for instance, the story of Hansel Emmanuel, a one-armed basketball player with remarkable skills, originally from the Dominican Republic. Hansel’s exceptional abilities led to him securing an O-1 visa, allowing him to participate in NIL activities and potentially setting a precedent that could open doors for other international Division I athletes seeking to profit off of their NIL in America. The criteria for obtaining an O-1 visa are undoubtedly stringent, but for those who meet them, it represents a game-changing opportunity. 

This visa not only paves the way for international student-athletes to compete at the Division 1 level but also allows them to actively participate in the burgeoning world of NIL deals. While the O-1 visa may not be a feasible option for every international athlete, it presents an exciting prospect for those with extraordinary skills and the potential to make a significant impact in collegiate sports. It is worth noting that exploring the O-1 visa as a pathway for international athletes involves rigorous documentation and a thorough understanding of the eligibility criteria. Consulting with immigration experts or legal professionals is advisable for athletes considering this route.

So, what does this mean for international student-athletes? The challenges are significant. Most state NIL laws prohibit institutional payment or deal-making for student-athletes’ NIL, limiting their options for profiting from their image and likeness. These athletes are essentially forced to choose between trading 20 hours per week of NIL income from their school for 20 hours a week of on-campus employment.

While many athletic departments advise international student-athletes to avoid NIL opportunities altogether, some avenues are still open. The physical location of the student-athlete is crucial in this analysis. There is no U.S. immigration status when an international student-athlete is physically outside the United States, which makes it possible for them to engage in NIL activities during academic breaks or while visiting their home countries.

Furthermore, understanding the difference between passive and active income is key. Passive income, such as royalties, is generally considered acceptable. The question arises when royalties require a certain level of participation or effort, as it could be deemed active income, thus subject to immigration restrictions.

The lack of clarity in federal guidance leaves international student-athletes and their institutions in a precarious situation. In the absence of comprehensive federal regulations, institutions have sought guidance from immigration counsel to help navigate this complex landscape.

A potential solution lies in the hands of Congress or the DHS. Congress could create a legislative fix that would permit NIL activities by any current NCAA student-athlete with lawful status in the U.S. This change, while challenging, is not unrealistic. Alternatively, the DHS could provide a regulatory fix by updating the definitions of “student activity” and “permissible work” for F-1 visa holders in the context of NIL. Lastly, DHS could offer informal regulatory guidance through a policy memorandum, allowing F-1 students to engage in NIL activities authorized by state statutes.

The exclusion of international student-athletes from the NIL revolution reflects the intricate interplay between immigration laws, NCAA regulations, and the complex world of collegiate athletics. Tom Raffin, a PhD Candidate in Sport Management at Florida State researches issues in NIL and notes that “Your average fan and student is unaware of the issues faced by international students and international student athletes, international student athletes should be vocal regarding the issues they face and the potential impact that state and federal legislation may have on them.” As discussions continue, it remains a pressing issue in need of a comprehensive solution that ensures equity for all college athletes, regardless of their origins.

However, there are potential solutions and strategies to help international student-athletes participate in the NIL movement and benefit from this emerging opportunity. Here are some key solutions to consider:

1. Collaborate with Immigration Experts

One of the first steps for international student-athletes is to consult with immigration experts, preferably attorneys well-versed in U.S. immigration law. These professionals can provide guidance on how NIL activities align with visa regulations and help international athletes navigate potential challenges. Consultation with immigration experts is allowed and recommended to navigate complex visa and NIL regulations.

2. Active vs. Passive Income

International student-athletes should understand the distinction between active and passive income concerning NIL opportunities. Passive income, which doesn’t require personal actions for compensation, may offer more flexibility under certain visa restrictions. Examples of passive income could include royalties or allowing the use of their NIL without direct involvement. Understanding the active vs. passive income distinction is crucial to compliance with immigration regulations. International student-athletes should aim to engage in activities that align with passive income guidelines.

3. Utilize Off-Campus NIL Activities

Explore the possibility of engaging in NIL activities that can be completed outside the United States. International student-athletes can capitalize on their marketability and appeal to international audiences, potentially securing sponsorships, endorsements, or social media promotions. Engaging in NIL activities outside the United States is generally allowed as long as it doesn’t interfere with visa status.

4. Educate Universities and Legal Advisors

Institutions and legal advisors should be well-informed about the unique challenges international student-athletes face regarding NIL. Encourage open communication and collaboration between athletes and their universities to develop mutually beneficial solutions. Universities and legal advisors should be well-informed about the challenges international student-athletes face, and communication between athletes and institutions is vital.

5. Advocacy and Legislation

Encourage advocacy and legislative efforts to address the NIL restrictions placed on international student-athletes. Lobbying for changes in visa regulations or seeking exemptions specifically for this group can help level the playing field.

6. Multinational Business Ventures

International student-athletes might consider exploring NIL activities that involve businesses operating internationally. These ventures can potentially sidestep some U.S. immigration restrictions and open doors for global sponsorship and endorsement opportunities. Involvement in multinational business ventures might provide opportunities to work around U.S. immigration restrictions, but individual circumstances would need to be considered.

7. Engage Home Countries

Collaborate with sports organizations, agencies, or companies in the athlete’s home country to explore NIL opportunities that align with their visa status. This can include conducting promotional activities during visits to their home country. Collaborating with home country organizations is a feasible option for many international student-athletes, especially during visits to their home country. As an example, Purdue University has strategically scheduled a game in Toronto, creating a golden opportunity for their star player, Zach Edey, to maximize his NIL benefits. Edey, hailing from Canada, achieved the feat of being named the Big 10 Player of the Year and the National Player of the Year in the 2023 season. Purdue’s decision to compete in Canada not only amplifies their international presence but also provides Edey with the chance to explore and exploit NIL opportunities in his home country.

8. Online and Remote NIL Activities

Leverage digital platforms and remote engagement for NIL activities. Social media campaigns, online endorsements, or participating in international virtual events can provide revenue streams that don’t necessarily conflict with visa regulations. Online and remote NIL activities can provide opportunities for international student-athletes as long as they align with passive income regulations and don’t violate visa restrictions.

9. Advocate for Regulatory Changes

Student-athletes, universities, and advocacy groups can work together to push for regulatory changes at the federal level. Initiatives can aim to make specific exemptions or allowances for international student-athletes in the context of NIL. Advocating for regulatory changes can be a lengthy process but may lead to more accommodating rules for international student-athletes.

10. International Student-Athlete NIL Scholarships

Universities and organizations could establish scholarships or grants specifically designed to support international student-athletes in participating in NIL activities, providing financial assistance and legal guidance.  Establishing scholarships for international student-athletes is an option if it complies with visa and education regulations.

It’s important to emphasize that individual circumstances can vary, and legal advice should be sought to ensure that any specific activities or solutions adhere to the athlete’s visa requirements. Additionally, advocacy and policy changes may be necessary to create a more accommodating environment for international student-athletes in the NIL landscape.

Loopholes and Issues

Navigating the intricate landscape of college athletics and the dynamic era of NIL rights has unveiled both opportunities and challenges, often highlighting the presence of loopholes and complexities that require careful consideration.

For example, tennis players can earn NIL income regardless of international status. When it comes to tennis players, their unique path to NCAA eligibility and the ability to earn income stems from their professional status. Tennis players often differ from other student-athletes in that many of them have already turned professional before pursuing their college careers. These players may have participated in international tournaments, secured sponsorships, or earned prize money in professional events. As such, they have already been exposed to the world of professional tennis.

However, in order to maintain their eligibility to compete in NCAA events, there are regulations in place. Tennis players, like their peers, must adhere to NCAA rules that limit the amount of money they can earn while in college without jeopardizing their eligibility. These rules aim to strike a balance between allowing student-athletes to capitalize on their talents and the opportunities presented by the NIL era while preserving the fundamental principles of amateurism within college sports.

For tennis players, this means they can continue to receive compensation for their tennis-related activities, as long as they do not exceed a threshold of 10,000 dollars in prize money each year

By allowing tennis players to earn money while in high school and college, the NCAA acknowledges their unique journey into the world of sports. It accommodates their prior professional experiences and the unique nature of tennis, ensuring they can transition into college athletics seamlessly. While there are constraints on their income to uphold amateurism, the rules enable these athletes to harness their skills and market their talents during their collegiate careers. This approach provides tennis players opportunities to make the most of their college experience, both on and off the court, however this has not been universally embraced, as the 10,000 dollar cap falls well short of the prize amounts that top tennis players, such as top ranked UNC senior Fiona Crawley, can earn on professional tours

A popular discussion stemming from NIL regards reclassifying athletes as employees. However, doing so could pose significant challenges for international student-athletes due to their visa status. Most international students in the United States hold F-1 visas, which are designed for academic purposes and come with certain work restrictions. They are permitted to work on-campus for up to 20 hours per week during the academic year. According to Raffin, if student-athletes were to be labeled as employees, their total number of hours “worked” would very likely escalate beyond 20 hours, which would conflict with the terms of their visas, leading to visa violations and endangering their immigration status. 

Furthermore, this reclassification could affect their eligibility for athletic scholarships, as these scholarships are considered financial aid for education rather than employment income. It may also disrupt their academic schedules and progress, raising concerns about visa-related issues and complicating the compliance with U.S. immigration regulations that is mandatory for international student-athletes. As initially reported in Sportico, “If you are remaking them as employees, there is not a lot of optionality available for foreign athletes,” said Jonathan Grode, a Philadelphia-based immigration lawyer who has also represented a number of athletes. “It creates a challenging juxtaposition, and this is already playing out within the NIL scenario with no resolution.”

Overall, changing the status of student-athletes from students to employees could give rise to intricate legal and logistical challenges that could have a substantial impact on the eligibility and visa status of international student-athletes.

In the evolving landscape of NIL, international student-athletes must navigate a complex web of immigration laws, NCAA regulations, and the ever-changing world of college athletics. The absence of comprehensive federal guidance on NIL matters leaves international student-athletes and their institutions in a precarious position.

The challenges international student-athletes face with NIL restrictions, compounded by the limitations of F-1 visas, demand thoughtful solutions. Consulting with immigration experts, understanding the nuances of active and passive income, and exploring off-campus NIL activities can help international athletes participate in the NIL movement without jeopardizing their visa status. Advocacy for regulatory changes and exemptions, as well as the creation of international student-athlete NIL scholarships, can make the landscape more equitable. In the face of these challenges, it is essential for student-athletes, universities, advocacy groups, and policymakers to work together to pave the way for a brighter future for international athletes in the NIL landscape. The distinction between different sports, such as tennis, highlights the continued need for the NCAA to recognize the individual journeys of its athletes and presents unique insights into the evolving landscape of college athletics. Yet, reclassifying athletes as employees remains a complex and contentious issue, with potential repercussions for international student-athletes. As discussions surrounding NIL and employee status continue, the potential impact on international student-athletes serves as a reminder of the intricate balance between athletic opportunities and legal regulations. The need for comprehensive reform is evident, as we strive for an inclusive and equitable environment for all athletes participating in the exciting era of NIL rights.