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Hundreds of thousands of student athletes have made money from their name, image and likeness since the National Collegiate Athletic Association first allowed them to do so on July 1, 2021. While these deals have provided financial support for athletes at all levels of college sports, one group has been left out: student athletes from outside of the United States.
This is because most foreign student athletes are in the U.S. on F-1 student visas, which place strict limits on their ability to work. The federal government has not expressly said whether NIL activities, such as signing autographs, making appearances or posting on social media, constitute impermissible “work,” leading to inequities among not only athletes but also schools. Some schools take a cautious approach, while others promise foreign student athletes the chance to participate in NIL activities with little regard to potential visa violations. In order to best advocate for foreign student athletes and their schools, the BAL Sports & Entertainment and Government Strategies teams set up a series of virtual roundtables with NCAA Division I schools to learn more about their experiences and solicit their insights.
The schools hailed from all parts of the country and represented several athletic conferences, including each of the NCAA’s Power Five conferences. And while they all brought a unique perspective, they stressed some of the same themes over and over again:
Across the board, schools said they want clear, precise guidance defining what NIL activities are permissible for F-1 foreign student athletes. More than any specific recommendation, schools were united on this point. They want clarity.
Absent guidance, athletic departments are under tremendous pressure to find workarounds or loopholes to attract and retain foreign student athletes. Some schools have promised foreign student athletes guaranteed NIL participation, despite the lack of clear rules on whether such activities are permissible on F-1 visas. This exposes students to potential visa violations, which could permanently affect their ability to travel to the U.S. to work, study or live.
The lack of immigration policy has led many schools to take a conservative approach, excluding foreign student athletes from NIL activities, including team-wide NIL deals. This creates inequities among not only players but also schools, some of which are less cautious. The exclusion of foreign student athletes from NIL activities complicates team and locker room dynamics, impacting team performance and morale.
Permitting foreign student athletes to engage in NIL activities supports economic growth in the U.S. While a handful of multimillion dollar endorsement deals steal the headlines, most happen at the state or local level, supporting jobs in university communities. These communities do not get the full benefit of NIL-related income when foreign student athletes are not allowed to participate. Rather, few U.S. businesses can partner with foreign student athletes, provided they leave the U.S. to conduct NIL activities abroad.
Participating in NIL activities plays an important part in the student athlete experience and the overall development of the student in their educational and cultural experience in the U.S. Though limited options may exist for some foreign student athletes to change their visa to cash in on their NIL, universities are hesitant to pursue these routes as these athletes are first and foremost students, not employees.
As we see with men’s and women’s college basketball, college sports is an increasingly international affair. As of 2022, there were more than 24,000 foreign student athletes in Division I, II and III sports. Foreign student athletes made up 12.8% of Division I athletes, including 15% of men’s college basketball players and 13% of women’s college basketball players. In both men’s and women’s Division I tennis, more than 60% came from outside of the U.S.
The inability of foreign student athletes to participate in NIL hinders the ability of U.S. schools to compete for the best international collegiate athletic talent. Foreign student athletes must be able to benefit from their NIL just as their U.S.-born teammates do. The need for government action is clear.
The patchwork of state NIL laws have prompted calls for federal NIL legislation more broadly, and at least one proposal would allow foreign student athletes to make money off their NIL without jeopardizing their F-1 status. Thus far, legislative efforts have fallen short, even with recent support from the most prominent collegiate athletic conferences.
In the absence of legislation, as we have previously argued, the Department of Homeland Security can and should publish clarifying policies on permissible NIL activities for F-1 student athletes. The Student and Exchange Visitor Program and Homeland Security Secretary Alejandro Mayorkas have both indicated they will provide guidance, but so far nothing has materialized.
The BAL Sports & Entertainment and Government Strategies teams will continue to support efforts and press the federal government to address NIL for foreign student athletes. Until then, schools must carefully evaluate the NIL landscape when developing policies for foreign student athletes. F-1 student athletes must also be cautious in their NIL activities since visa violations may render them ineligible for visas in the future.
Gabriel Castro is a Senior Associate at BAL who leads the firm’s Los Angeles office and Sports & Entertainment practice. Tiffany Derentz is a Senior Counsel at BAL who leads the firm’s Washington, D.C., office. She is a member of the firm’s Government Strategies and Sports & Entertainment teams.
The state of Connecticut is celebrating another NCAA basketball championship, but its U.S. senators are lamenting a broader problem in college sports.
Two weeks ago, Sens. Richard Blumenthal and Chris Murphy, both Democrats, wrote a letter to Homeland Security Secretary Alejandro Mayorkas urging him to address current regulations that make it difficult for foreign student athletes to capitalize on their Name, Image and Likeness.
Blumenthal and Murphy noted that both the University of Connecticut’s men’s and women’s basketball teams had international players who made “significant contributions” this year (Blumenthal later mentioned Adama Sanogo and Aaliyah Edwards specifically), and added that, nationwide, more than 20,000 international students currently compete in collegiate athletics.
“As these athletes compete in their sports’ national championships and other high-profile competitions, any one of them could gain notoriety overnight and have substantial NIL opportunities presented to them,” the senators wrote. “The only thing standing in their way is our outdated regulations on the terms of their visas. This is unacceptable.”
We agree.
The problem stems from the fact that most foreign student athletes are on F-1 visas, which permit work only in limited circumstances. In this context, “work” is often equated with earning money from a U.S. source.
As Blumenthal and Murphy correctly note, current regulations do not “speak to the unique circumstances” of foreign students’ use of their NIL to earn money. This creates two classes of student athletes—U.S. athletes who are able to take any NIL deal they are offered, and foreign athletes who could jeopardize their immigration status for doing the same thing.
There are some workarounds. For example, foreign student athletes can conduct NIL activities while outside the U.S. Others have been successful in converting from an F-1 to an O-1 visa (for individuals with outstanding abilities) or P-1 visa (for athletes, artists or entertainers), which would allow them to work, attend class and participate in their sport.
Neither is a satisfactory long-term solution, however. There are logistical challenges to going abroad, and legal costs and filing fees make applying for a different visa an unattractive option for many student athletes.
A sensible solution would be for DHS to turn to the B-1 Temporary Business Visitor visa as a model. B-1 visitors are barred from “performing skilled or unskilled labor” in the U.S. However, the government has issued rules and guidance regarding a range of business-related activities that are considered permissible (i.e., not “labor”), such as engaging in certain commercial transactions, consulting with business associates, traveling to conferences, short-term training and negotiating contracts.
Even professional athletes can use B-1 visas to participate in tournaments or sporting events if they only receive prize money, which, for some sports, can mean earning millions of dollars.
There is no reason DHS cannot do the same for F-1 international students. After all, they are—first and foremost—students, and most NIL deals are worth far less than the amounts professional athletes can receive competing in multiple tournaments or events.
Many NIL activities require very little of the athlete and may include signing autographs, making personal appearances or posting on social media. These activities are merely incidental to visa holders’ status as student athletes, which requires them to maintain a full course of study. This kind of approach would allow international athletes to secure NIL deals and carry out their end of the bargain in the U.S.—not outside the country.
To date, DHS has not engaged relevant stakeholders on this issue and appears to lack a true understanding of the NIL opportunities available to students. It has been nearly two years since the NCAA adopted its NIL policy, and the government has yet to issue any guidance.
The good news is Blumenthal and Murphy appear to have grabbed Mayorkas’ attention. At a Senate Judiciary Committee hearing last week, Mayorkas thanked Blumenthal for the letter and said he had not previously been aware of the issue.
“We are indeed looking at the issue very carefully,” he said, adding, “We will move with deliberate speed … we will move as quickly as we can.”
Until then, the two-tiered system of college sports will continue. DHS, the ball is in your court.
Gabriel Castro is a Senior Associate at BAL who leads the firm’s Los Angeles office and Sports and Entertainment practice. Tiffany Derentz is a Senior Counsel at BAL who leads the firm’s Washington, D.C. office. She is a member of the firm’s Government Strategies and Sports and Entertainment teams. Castro and Derentz authored a white paper on the NCAA’s NIL rules in 2022 and appeared on a recent episode of the firm’s podcast to discuss the issue.
Get this news and more in the new episode of BAL’s podcast, the BAL Immigration Report, available on Apple, Spotify and Google Podcasts or on the BAL news site.
This alert has been provided by the BAL U.S. Practice Group.
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