This article is Part III of a four-part series discussing compensation for college athletes using their Name, Image, and Likeness (“NIL”).
Part I – NIL: Not [necessarily] Incorporated in Legislation. What Student-Athletes Should Know.[1]
Part II – Proactive v. Reactive: Challenging Athletic Departments to Recognize the Realities that the Name, Image, and Likeness Market Introduce.[2]
International College Athletes
Approximately 20,000 international student-athletes are currently competing in the NCAA.[3] This makes up about 12% of all NCAA student-athletes.[4] Unfortunately, these students are not getting deals to compensation from their likenesses because most international student-athletes are here in the United States under F-1 Student Visas. Id. More specifically, F-1 Student Visas “prohibit students from working off-campus except in rare occasions.” Id. Moreover, once a school finds out an F-1 international student-athlete may have violated his/her visa requirement, then it is the school’s responsibility to terminate the visa. Id. Thus, it is incredibly risky, if not prohibited, for international student-athletes to even attempt to pursue NIL deals.
F-1 School Visas Explained
As mentioned before, most international student-athletes are in the United States here under F-1 Student Visas. More specifically, these visas are sponsored by their college or university, which means that the schools are ultimately responsible for the student-athletes’ immigration compliance.[5] For example, if a student-athlete violates the F-1 visa rules, their school is legally authorized to cancel that international student-athlete’s visa status. Id.
The power for schools to enforce international student-athlete compliance with F-1 student visas comes from the requirement authorized by the Department of Homeland Security (“DHS”). Id. Under the terms of the F-1 visa, international student-athletes are allowed to work mainly on campus with a few exceptions for off-campus work. Id. Nonetheless, all off-campus related work requires specific authorization by the school and may be subject to specific approval of the U.S. Citizenship and Immigration Services (USCIS). Id. Therefore, any off-campus work, which presumably includes compensation for likeness, which is not approved by the school, or the USCIS, would violate the F-1 visa regulations, and that student’s status would have to be terminated. Id.
How International Students can Earn Money Under their F-1 Visas
Under the requirements of the F-1 visa, international student-athletes can maintain their status and engage in paid work opportunities in a few scenarios.[6]
- On-campus employment. Id.
- Off-campus employment under economic hardship. Id.
- On-campus jobs tied to their specific field of study (i.e., internships).
- Off-campus jobs that are tied to their field of the student (i.e., internships).
Unfortunately, for international student-athletes these allowable circumstances are purposefully limited. Therefore, it is very likely that any income earned by using their likeness would fall outside the parameters outlined above and thus be in explicit violation of their F-1 status. Id.
Likeness Compensation Realistically Begins with the Federal Government
Ultimately, immigration law is a federal matter and cannot be uniformly addressed by the various state laws in place that speak to NIL activity. Nor can an international-student athlete’s ability to compensate for his/her likeness be addressed by institution-specific policy. Therefore, federal legislation is truly the best and most realistic option for universal change.
In addition to a federal bill that speaks to international student-athletes, there may be an alternative avenue if and when student-athletes are recognized as employees of their respective institutions.
“Student-Athletes” as “Employees”
While this post is not intended to dive into the vast waters that come with the potential of student-athletes being identified as employees, it is, however, intended to identify scenarios for international student-athletes to compensate for their likeness. One of those scenarios could come if student-athletes are identified as employees of their respective institutions.
This potential is more real than we may imagine. In a recent post by our very own Professor Nellie Drew, she discussed the significance of the 3rd Circuit’s pending case, Johnson v. NCAA.[7] More specifically, the denial of the NCAA’s motion to dismiss the fair wage claim under the Fair Labor Standards Act demonstrates the reality that courts no longer agree with the NCAA’s stance on preserving amateurism. Id. This denial of the NCAA’s motion to dismiss is in tune with the Supreme Court’s decision in NCAA v. Alston. There, the Court rejected the NCAA’s reasoning that intercollegiate athletics differentiates itself from professional sports through the amateur (unpaid) status of its athletes, therefore allowing student-athletes to receive academic-related payments would render intercollegiate athletes obsolete and ultimately diminish the purity of amateurism.[8]
It is a very real possibility that the NCAA’s self-described “amateur status” of its student-athletes may be deemed null and void sooner rather than later. If this were to occur, then there would be no more issues with the so-called “amateur status” that has prohibited many international student-athletes from pursuing visas other than F-1’s. Therefore, could it be a possibility for international-student athletes to redefine themselves not as amateurs, but as “professional” athletes who would thus be able to apply for a P-1A or O-1A visa?[9] If so, perhaps international student-athletes may be able to tap into the NIL market that they have been excluded from as they would no longer be confined to the compensation restrictions that come with maintaining status under an F-1 visa.
P-1A Athlete
Per U.S. Citizenship and Immigration Services:
“The P-1A classification applies to you if you are coming temporarily to the United States solely for the purpose of performing at a specific athletic competition as:
- An individual athlete at an internationally recognized level of performance;
- Part of a group or team at an internationally recognized level of performance;
- A professional athlete; or
- An athlete or coach, as part of a team or franchise that is located in the United States and a member of a foreign league or association.[10]
Professional Athletes
You must be coming to the United States to be employed as an athlete by:
- A team that is a member of an association of six or more professional sports teams whose total combined revenues exceed $10 million per year. The association must govern the conduct of its members and regulate the contests and exhibitions in which its member teams regularly engage; or
- Any minor league team that is affiliated with such an association.” Id.
The NCAA is comprised of over 1,000 schools across Division I, II, and III, and generated $1.15 billion in 2021.[11] Clearly, if student-athletes as a whole are identified as “employees” , thereby making the amateur status obsolete, then international student-athletes may very well look at the P-1A visa as a real and less restrictive way to gain temporary citizenship while also being able to maximize all the benefits that come in the new age of college athletics.
O-1A Visa: Individuals with Extraordinary Ability or Achievement
Although an O-1A visa requires a much more subjective analysis than that of a P-1A application[12], its status may invite future international college athletes to apply if and when the amateur status of student-athletes is deemed irrelevant.
Per U.S. Citizenship and Immigration Services:
“The O-1 nonimmigrant visa is for the individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements.
General Eligibility
To qualify for an O-1 visa, you must demonstrate extraordinary ability by sustained national or international acclaim, or a record of extraordinary achievement in the motion picture and television industry, and must be coming temporarily to the United States to continue work in the area of extraordinary ability.
Extraordinary ability in the fields of science, education, business or athletics means a level of expertise indicating that you are one of the small percentages who have arisen to the very top of the field.”[13]
Still to be determined.
International student-athletes trying to maintain amateur status to compete in the NCAA are significantly restricted from earning compensation for their likeness – at least for now. Nonetheless, as the landscape continues to evolve, so will the overall status of international student-athletes. It may begin with student-athletes, as a whole, being identified as “employees” and thus rendering the amateur status obsolete. If this happens, then international student-athletes will likely seek other, less restrictive, options to earn temporary citizenship than the traditionally relied upon F-1 visa. Of course, an “employee” tag on all college athletes competing in the NCAA would open a slew of seemingly endless questions. However, specifically for international student-athletes, an “employee” status as opposed to an “amateur status” would ignite a new way of seeking temporary citizenship – and monetizing their name, image and likeness.
[1] https://ublawsportsforum.com/2021/10/09/nil-not-necessarily-incorporated-in-legislation-what-student-athletes-should-know/
[2] https://ublawsportsforum.com/2021/11/11/proactive-v-reactive-challenging-athletic-departments-to-recognize-the-realities-that-the-name-image-and-likeness-market-introduce/
[3] https://www.bakertilly.com/insights/understanding-name-image-and-likeness-rights-of-international-students
[4] https://www.sportsbusinessjournal.com/Daily/Issues/2021/12/27/Colleges/NIL.aspx
[5] https://www.jdsupra.com/legalnews/international-student-athletes-and-ncaa-1729551/
[6] https://www.natlawreview.com/article/international-student-athletes-shut-out-nil-deals
[7] https://ublawsportsforum.com/2022/02/08/are-student-athletes-employees-the-3rd-circuit-will-decide/
[8] https://www.jdsupra.com/legalnews/ncaa-v-alston-the-beginning-of-the-end-9351737/
[9] https://www.uscis.gov/working-in-the-united-states/temporary-workers/p-1a-athlete
[10] https://www.uscis.gov/working-in-the-united-states/temporary-workers/p-1a-athlete
[11] https://www.espn.com/college-sports/story/_/id/33201991/ncaa-earns-115-billion-2021-revenue-returns-normal
[12] https://www.sherrodsportsvisas.com/o1-or-p1-visa
[13] https://www.uscis.gov/working-in-the-united-states/temporary-workers/o-1-visa-individuals-with-extraordinary-ability-or-achievement
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