By Mallory Gault
Name, Image, and Likeness (NIL) rights have transformed the world of college athletics and has allowed student-athletes the opportunities to profit off their personal brand, yet those opportunities are not available to all student-athletes. Keith Miller, vice president at Influxer, spoke about the complex legal and visa issues surrounding international student-athletes and NIL opportunities at the National Sports Law Institute’s 36th Annual Fall Conference. Despite the progress in NIL rights for U.S. athletes, international student-athletes face major legal and practical barriers due to F-1 visa restrictions, lack of government guidance to universities and misinformation.
Miller touched on international student-athletes receiving misinformation regarding NIL rights from social media. Generally, student-athletes are allowed to profit from their name, image, and likeness but NIL opportunities for international student-athletes often conflict with visa regulations. The federal government regulates students immigrating to the United States for academic studies, individual states do not. International student-athletes often misinterpret headlines not realizing there is a difference between federal and state law. This stems from the lack of communication and official guidance from the federal government to universities. At every university campus, there are at least two designated school officials (DSOs) that are responsible for a myriad of things related to international study programs. DSOs are responsible for ensuring programs are in compliance with the U.S. Government rules of law by monitoring and self-reporting violations. The problem today is that university personnel are underinformed, and guidance from federal agencies has not evolved with NIL changes.
There are multiple visas an international student can obtain but the most common is the F-1 visa. The F-1 visa allows students to enter the United States as a full-time student at an accredited college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in a language training program. Students must be enrolled in a program or course of study that culminates in a degree, diploma, or certificate and your school must be authorized by the U.S. government to accept international students. Miller emphasized that under the F-1 visa, students are here in the U.S. to study and have academic pursuits, athletics is secondary. In general, no work is permitted without authorized permission to work by the DSO or International Office. Exceptions for work can include approved on-campus jobs that serve other students from the school, severe hardship petitions, CPT programs, OPT programs or volunteer work with no promise or expectation of pay, benefit or remuneration.
Problems arise when a F-1 student has active income. Examples can include working at a local business, providing private lessons for a fee, social media influencing while on U.S. soil, filming a commercial in the U.S., or operating their own business in the United States. Miller shared an example of a Chinese student, who cooked and sold meals to their peers, had their visa revoked and was deported as a result. Furthermore, many operate under the myths that NIL occurring on campus is okay and that volunteer work and paid NIL is permissible. Both myths are false. The wording of 8 CFR 214.2(f)(9)(i) and 29 CFR 553.101 are highly specific, imposing strict limitations on the nature and scope of permissible activities. Adding to the complexities of visa regulations, the U.S. government may receive reports about a student-athlete, flag their visa status, wait until they return home, and then deny them reentry when they attempt to come back to the United States.
In addition to the F-1 visa, international students may also consider other visa options. First is the J visa. This visa it is typically used for grad students who are coming to campus to hold a working function as a researcher or lecturer. Miller mentioned that the J visa is not a realistic option for international student-athletes because of time commitments. The next option is the M visa, which is designed for students attending vocational or technical schools. Since NCAA member schools are not defined as vocational schools, the M visa is not a viable option for international student-athletes. Another option, the P visa, applies to professional athletes and as a result student-athletes do not qualify. The O visa, or as Miller called it, the “Einstein Visa,” is reserved for individuals of exceptional talent and international distinction. So, few people actually qualify for it and if they do it is a long, difficult and expensive process of getting. Finally, the last option is the H visa, which is intended for individuals who have earned a bachelor’s degree and are entering the U.S. workforce in their field of study. As a result, it is not a viable option for undergraduate student-athletes.
Despite strict regulations, some workarounds have emerged that allow international student-athletes to earn money from their NIL rights. Miller noted that people are finding creative solutions, for example, featuring an international student-athlete in a university’s international student brochure and compensating them through royalties. Student-athletes can also authorize companies or their university to sell branded merchandise, and as long as they are not directly involved in the sales, the income is considered passive and not in violation of their visa.
NIL has created valuable opportunity but also confusion and significant risks for international student-athletes. Until federal immigration regulations change, universities must educate and protect their athletes through careful compliance and transparency. As Miller emphasized, international student-athletes need robust safeguards, since meaningful federal regulatory reform is unlikely in the near future.
Mallory Gault is a third-year law student at Marquette University Law School. Mallory earned her Bachelor of Science from Michigan State University, where she majored in Economics and Data Analytics. Mallory is currently pursuing her J.D. with a Sports Law Certificate from the National Sports Law Institute. She is an active member of Moot Court and the Sports Law Certificate Program National Competition Team.
