Rachel Pederson, University of Minnesota Law School
The National Collegiate Athletic Association (NCAA) implemented a policy allowing students-athletes to profit off of their name, image, and likeness, but international students-athletes are subject to visa regulations restricting them from doing so. In June 2021, the Supreme Court upheld a Ninth Circuit injunction against rules promulgated by the National Collegiate Athletic Association (NCAA) restricting “non-cash education-related benefits.” Current and former student-athletes had brought a class action suit against the NCAA, “alleg[ing] that the NCAA’s rules violate §1 of the Sherman Act, which prohibits “contract[s], combination[s], or conspirac[ies] in restraint of trade or commerce.’” The injunction “permit[ed] colleges and universities to offer enhanced education-related benefits…” While the holding did not preclude the NCAA from prohibiting student-athletes from receiving benefits unrelated to education, in the wake of the decision, the NCAA decided to waive Article 12 of its Bylaws on an interim basis, allowing student-athletes to benefit off of their name, image, and likeness (NIL), effective July 12, 2021. Still, athletes are not to be paid directly by the university outside of the cost of attendance and “the [NCAA] has been keen to ensure that athletes not be considered employees of their colleges.” However, for the more than 24,000 international student-athletes participating in NCAA sports a unique challenge arises under this new interim policy: how can they earn NIL money while complying with United States Citizenship and Immigration Services’ (USCIS) visa regulations?
The most commonly used visa for student-athletes is an F-1 visa. With an F-1 visa, an individual is permitted to “enter the United States as a full-time student at an accredited college, [or] university…” However, F-1 students are extremely limited in their employment eligibility. During their first year, F-1 students are prohibited from working off-campus, and any on-campus work is subject to conditions and restrictions. In subsequent years, the students may accept off-campus work “related to their area of study and must be authorized prior to starting any work by the Designated School Official… and USCIS.” The NCAA’s new NIL policy and their dedication to ensuring students are not employees of the university paired with USCIS’s F-1 visa parameters leaves international student-athletes present in the U.S. on F-1 visas without the opportunity to benefit from NIL.
Therefore, international student-athletes looking to profit off of NIL may now begin to consider other immigration/visa options, including the O-1A Visa. O-1A visas are designated for individuals with extraordinary ability in a range of fields, including athletics. Prospective O-1A visa beneficiaries have the burden of demonstrating extraordinary ability, defined as “a level of expertise indicating that the person is one of the small percentage who have arisen to the very top of the field of endeavor.” Additionally, they will need to make a showing that they will continue to work in that field when in the United States. However, this solution is not so simple, as there remains one large obstacle: O-1A visas require a U.S. employer, or U.S. agent, to petition on behalf of the beneficiary. The petitioner must submit a Petition for a Nonimmigrant Worker (Form I-129). Therefore, international student-athletes will need to have interested sponsors lined up to petition for them to obtain the visa, whether they enter with an O-1A visa or change from an F-1 visa. Additionally, time is an impediment for O-1A visa holders as the initial period of stay for nonimmigrants is up to three years, with an opportunity for extension of stay for up to only one year, obviously limiting athletes looking to maximize their eligibility and earning opportunities. It should be noted that, while the process for an O-1 visa may be more difficult than an F-1 visa, it is not impossible. Hansel Enmanuel, a Northwestern State University basketball player from the Dominican Republic, is believed to be the first student-athlete to have received an O-1A visa to compete in the NCAA. Enmanuel received approval for an O-1 Visa in October 2022.
The NCAA’s new NIL policy, in the context of USCIS student visa policy and regulation, leaves international student-athletes out in the cold or, at the very best, requires them to jump through more complex hoops to provide themselves opportunities to profit off their name, image, and likeness.
 National Collegiate Athletic Association v. Alston, 594 U.S. __, 36 (2021).
 Id. at 1 (citing 15 U.S.C. § 1 (1890)).
 Id. at 35.
 Id. at 34 (“[N]othing stops [the NCAA] from enforcing a “no Lamborghini” rule.”); Alan Blinder, College Athletes May Earn Money from Their Fame, N.C.A.A. Rules, N.Y. Times (June 30, 2021) https://www.nytimes.com/2021/06/30/sports/ncaabasketball/ncaa-nil-rules.html.
 Blinder, supra note 4.
 NCAA, International Student-Athlete Participation (Sep. 2023), https://www.ncaa.org/sports/2018/3/ 21/international-student-athlete-participation.aspx.
 U.S. Citizenship and Immigr. Services , Students and Employment, https://www.uscis.gov/working-in-the-united-states/students-and-exchange-visitors/students-and- employment (last updated Mar. 31, 2023) [hereinafter USCIS].
 USCIS O-1 Visa: Individuals with Extraordinary Ability or Achievement, https://www.uscis.gov/working-in-the-united-states/temporary-workers/o-1-visa-individuals-with-extraordinary-ability-or-achievement (last updated Mar. 3, 2023).
 USCIS, Policy Manual: Chapter 4 – O-1 Beneficiaries, at (A) https://www.uscis.gov/policy-manual/volume-2-part-m-chapter-4#S-C (last updated Oct. 4, 2023); See also USCIS, Appendix to Policy Manual: Chapter 4 – O-1 Beneficiaries, https://www.uscis.gov/policy-manual/volume-2-part-m-chapter-4#3 (last updated Oct. 4, 2023).
 Id. at (F)(1).
 USCIS, supra note 11, at (C)(1).
 USCIS, supra note 10.
 Bethany S. Wagner, Work Visas and One Intternational College Athlete’s Slam Dunk on His Name, Image, and Likeness Rights, 13 Nat’l L. Rev. 279 (Nov. 29, 2022).