By Connor T. Bean
Introduction
In recent years, the landscape of college athletics has seen a massive change due to recent developments. The National Collegiate Athletic Association (NCAA) now allows student-athletes to profit off their name, image, and likeness (NIL) in forms of sponsorships and endorsements, completely transforming the college athletic landscape. With brands looking to market themselves through the hottest names in NCAA athletics, these endorsement and sponsorship deals are ever growing in numbers. Recent examples have seen players earning multi-million-dollar NIL deals. These endorsements and sponsorships involve the brand aligning with a college student-athlete and promoting both commercially in ways such as television, social media, and print advertisements. The student-athlete promotes a product or service in exchange for compensation, and a student-athlete can have multiple endorsements. All of this comes with growing challenges and include questions regarding student-athlete loyalty vs chasing the compensation, Title IX and inequality, academic distraction, and compliance with state laws.
NIL vs F-1 Student Visa
Name, Image, and Likeness within the NCAA does not include the 12.6% or roughly 14,000+ international student-athletes who participate at the NCAA DI level. These international student-athletes are most commonly attending a United States accredited college, university, or other academic institution on a F1 Visa or “student visa.” An F1 Visa is a nonimmigrant visa issued by the United States Citizenship and Immigration Services (USCIS) that allows foreigners to enter the country for the purpose of studying full-time at as a student. If a student-athlete on a F1 Visa was to receive an NIL deal in its current climate, it would cause issues with respect to their visa type, which could then lead to further restrictions on their immigration status in the future, such as the government terminating the holder’s visa status and/or affecting the future likelihood of gaining a green card. Per USCIS, F1 Visa employment states, “F-1 students may also be eligible to work off-campus on a case-by-case basis as a result of special situations such as severe economic hardship or special student relief.” If any off-campus employment is authorized it must be related to their area of study. Additionally, F1 student visas only permit employment under specific circumstances, none of which apply to name, image, and likeness. Due to the large uncertainty and lack of clarity regarding NIL, there are no set rules on what NIL compensation means for F1 Visa student-athletes except that they cannot earn the same benefits as their American teammates.
Active vs Passive NIL Income
International student-athletes are able to earn a small NIL amount in a passive income deal. NIL Deals are broken down into two categories: Passive Income or Active Income. Thus, it is important for international student-athletes to know where their “income” is coming from in terms of NIL so they do not inadvertently violate any visa restrictions. An active income is tantamount to work, which international student-athletes cannot pursue, and can include creating a product or being commercialized. On the flip side, passive income for an international student-athlete, means there is minimal action involved in earning said compensation could include, for example, the university bookstore selling merchandise with the player’s name and number attached to it, with the student-athlete receiving a percentage of sales.
In the NCAA, men’s basketball players are the highest compensated student-athletes, with average earnings being roughly $60,000 per player. Zach Edey, a Canadian and former college basketball player at Purdue University, is a prime example of a student-athlete unable to receive NIL funds due to being an international student. Edey was one of the biggest names in NCAA men’s college basketball players in recent years, he is a two-time NCAA National college men’s basketball player of the year and Big Ten player of the year, and is also Purdue University’s record holder for career points and rebounds in school history. Even with these accolades, due to his F1 student visa, Edey could only earn a passive NIL with Purdue University’s bookstore selling his jerseys on campus and giving Edey a percentage of the sales.
P-1A Athlete Visa
International student-athletes have cited the potential to enjoy NIL opportunities if they were given the opportunity to obtain a P-1A Athlete Visa. The P-1A Athlete Visa applies to a foreign person coming temporarily to the United States solely for the purpose of performing at a specific athletic competition. Per USCIS, this visa encompasses individual athletes who are internationally recognized at their level of performance, a group or team recognized internationally at their level of performance, a professional athlete, or a foreign person that is a member of a foreign league or franchise that located in the United States. To be eligible to compete in NCAA sports, student-athletes must be considered an amateur, meaning they cannot accept compensation due to their athletic performance. In relation to amateurism and NIL deals, student-athletes are able to participate in the NCAA as they are still not considered professional athletes. The challenge here is the changing nature of “amateurism” with respect to NCAA student-athletes, given the advent of NIL compensation.
International student-athletes are starting to take legal action against the NCAA and USCIS. Louisiana State University (LSU) athlete, Last-Tear Poa, an Australian born women’s basketball player, spoke on her situation regarding NIL opportunities. If international student-athletes can obtain a P-1A athlete visa, this would allow them to participate in NIL related activities while not compromising their athletic participation. A P-1A Athlete Visa, explained above, is a visa type reserved for professional athletes who move to the United States solely to compete in their respective sports. Poa has filed an NIL lawsuit, Poa v. Jaddou et al (2024), as she feels the governmental agency, USCIS, is preventing international students from pursing NIL opportunities.
NCAA NIL Loopholes
There are a number of loopholes with respect to international student-athletes and NIL, but it does not equal the same compensation they would gain if they were regular student-athletes. International student-athletes are able to earn NIL deals when they are either in their home country or if their athletic team is traveling international for a game(s). University of Connecticut women’s basketball player (UConn), Aaliyah Edwards, a Canadian born player, faces the same restrictions as Zach Edey and other international student-athletes. Aaliyah signed a NIL deal with Adidas Canada, but she is unable to reap any additional benefits or promote herself when in the United States of America. This method for international student-athletes to gain NIL opportunities is still limited, and many institutions are against this NIL idea.
Another loophole for international student-athletes is to earn NIL deals while their college team plays overseas. This situation is quite rare, as NCAA schools are all based in the United States, and there are only a handful of overseas games played each year. A prime example of this is when University of Kentucky men’s basketball player, Oscar Tshiebwe, a Congolese born student-athlete, traveled overseas with his team. Tshiebwe was able to earn NIL deals when the University of Kentucky men’s basketball team traveled to the Bahamas for a preseason exhibition tour. While in the Bahamas, Tshiebwe’s visa restrictions were temporarily lifted, and he utilized this time outside of the United States to take advantage of NIL deals. His NIL opportunities during this time allowed him to earn over $500,000 in the week spent overseas on the island.
Proposed Bill
On April 15, 2024, Congresswoman Valerie Foushee (NC-04) and Congressman Mike Flood (NE-01) as well as Senator Pete Ricketts (NE) and Senator Richard Blumenthal (CT) introduced House Bill 7982 during the 118th Congress: “Name, Image, and Likeness for International Collegiate Athletes Act.” This bill is put forth to amend the Immigration and Nationality Act that would allow F1 student visas to authorize endorsement contracts for the use of name, image, and likeness for international student-athletes. This legislation would create an amendment in 8 U.S.C. §§ 1184(m), the new subcategory 3(A) visa class for the F1 student visa would allow work authorization where an international student-athlete can obtain NIL compensation as long as they are progressing through their academic degree program appropriately. This bill would also modify the F1 student visa so that international student-athletes who profit from NIL deals will not have worry about it affecting their visa status and future visa benefits.
References
Associated Press, Foreign college athletes make up notable part Of Division I, Associated Press (2022, December 14), https://apnews.com/article/sports-mens-womens-028aed51226b443552ab88e6639bc217
Eaton-Robb, P. (2024, February 27). UConn’s Aaliyah Edwards signs NIL deal in Canada, but can’t talk about it in the US. AP News. https://apnews.com/article/uconn-edwards-nil-canada-928b0cce6bb4f2f390e223472a9109c4
Heim, K. (2024, October 18). Competing for talent in ERA of NIL. Business Record. https://www.businessrecord.com/competing-for-talent-in-era-of-nil/
H.R.7982 – 118th Congress (2023-2024): Name, Image, and Likeness for International Collegiate Athletes Act. (2024, April 15). https://www.congress.gov/bill/118th-congress/house-bill/7982/text
LSU’s Last-Tear Poa NIL lawsuit against federal agency breaking new ground. Sports Business Journal. (2024, November 13). https://www.sportsbusinessjournal.com/Articles/2024/11/13/nil-lawsuit-last-tear-poa/
Marsh, L., Ho-Sang, M., & Sharpe, S. (2023). What to consider when it comes to NIL and international student-athletes. Akerman LLP. https://www.akerman.com/a/web/559aycbrj8t69qG4G2ZLUf/4SaFLW/lead1-nil.pdf
P-1A Athlete. USCIS. (2021, March 26). https://www.uscis.gov/working-in-the-united-states/temporary-workers/p-1a-athlete
Poa v. Jaddou et al (Louisiana Middle District Court, U.S. District Courts. October 24, 2024).
Students and employment. USCIS. https://www.uscis.gov/working-in-the-united-states/students-and-exchange-visitors/students-and-employment
Thompson, T. (2022, August 10). Oscar Tshiebwe making the most of NIL Opportunities in Bahamas. On3. https://www.on3.com/teams/kentucky-wildcats/news/oscar-tshiebwe-nil-opportunities-bahamas-student-visa-kentucky/
Connor T. Bean is an Assistant Professor of Sports Management at Shorter University in Rome, GA, where he resides. He is also a first-year doctoral student in the Troy University Ph.D. Sports Management program.
