By: Sarah Wlazlo
Name, Image, and Likeness (NIL) is one of the hottest topics in collegiate sports currently. With House v. NCAA slowly reaching its settlement and the National Labor Relations Board coming to decisions on employment status for student-athletes regarding NIL deals, the grey area of money-making ventures has never been broader.[1] This is no truer than for international students.
International student-athletes most commonly study at accredited institutions in the United States under an F-1 visa.[2] Among many restrictions, it prevents student-athletes from working more than 20 hours a week on campus.[3] If students wish to work off campus, or for more than 20 hours a week, then they must file additional forms.[4] However, the common interpretation of these forms is that this off-campus work focuses on post-graduate goals, such as future employment dreams or current study programs at the university.[5] This is combined with institutional policies that prevent schools from aiding student-athletes in finding NIL opportunities, which has functionally prevented international student-athletes from actively benefitting from NIL deals in the United States. [6]
Currently there are narrow workarounds to provide opportunities for international student-athletes, some of which that have yet to be heavily contested under labor laws. The first is the most legally simple: the student-athletes participate in NIL activities in their home county.[7] The F-1 visa only covers action done within the United States, not within the home country of the athletes.[8] If they wish to go home and sign posters, endorse shoes, or do meet-and-greets, they would be welcome to without violating their F-1 visa. However, the impracticality of this is blatant. Every international student-athlete would not so easily be able to jump on a plane or boat to travel the far distances that many international student-athletes do for their school. Even making the trip from a Northern State to Canada would take substantial time, effort, and money, while also balancing schoolwork, athletics commitment, and a social life.
A secondary, but legally grey, option is passive income. Currently, NIL activities limit international student-athletes to “services” or “labor for hire” which align with U.S. labor laws.[9] NIL does not necessarily require active participation, or even employment, for payment. For example, Success with Honor, a Penn State collective, has backed athletes in their home countries by purchasing billboards ads to create a passive income for international student-athletes.[10] By creating a passive set of income for multiple students, it offers an opportunity to fund students without the need for travel.
Above all else, the greatest solution would be clarity from the federal government.[11] There are multiple options for solutions: a statutory exception permitting NIL activities for international student-athletes, updating the definition of student activity or permissible work for F-1 visa holders, or even information given through a policy memorandum regarding how these students could participate under state law without fear of federal charges.[12] The legal issue of NIL and international student-athletes is only bound to continue as the laws shift for domestic student-athletes, and with a lack of clarity, the potential repercussions on students, institutions, and teams alike could be detrimental.
[1] International Student-Athletes and Their Eligibility for NIL Partnerships, BakerHostetler (Aug. 19, 2024), https://www.bakerlaw.com/insights/international-student-athletes-and-their-eligibility-for-nil-partnerships/.
[2] Mike Meltser, Advanced Intellectual Property Law, TexasBarCLE 2024, ch. 6, III. Limitations On International Student-Athletes
[3] U.S. Citizen Immigr. Servs., Chapter 6 – Employment (Nov. 14, 2024), https://www.uscis.gov/policy-manual/volume-2-part-f-chapter-6.
[4] Id.
[5] See Leigh P. Cole, International Student-Athletes and NCAA NIL Rules, Explained, Hirschfeld Kraemer (Jan. 14, 2022), https://www.hkemploymentlaw.com/international-student-athletes-and-ncaa-nil-rules-explained/.
[6] See generally Andrew Kreighbaum, College Athletes’ Status as Employees Puts Student Visas at Risk, Bloomberg Law (Feb. 19, 2024), https://news.bloomberglaw.com/daily-labor-report/college-athletes-status-as-employees-puts-student-visas-at-risk
[7] See Noah Henderson. NIL Confusion Remains for International Athletes, Sports Illustrated (Nov. 29, 2023), https://www.si.com/fannation/name-image-likeness/news/nil-confusion-remains-for-international-athletes-noah9.
[8] Maintaining Status, Homeland Sec., https://studyinthestates.dhs.gov/students/maintaining-status (last visited Nov. 18, 2024).
[9] Ed Pagano, Casey Higgins, and Maka Hutson, NIL Considerations for International Student Athletes, Sports Bus. J. (Jan. 23, 2023), https://www.sportsbusinessjournal.com/SB-Blogs/OpEds/2023/01/23-PaganoHigginsHutson.aspx.
[10] Jeremy Crabtree, Penn State Collective Success With Honor Launches NIL Ad in a Foreign Language, On3 (Oct. 24, 2022), https://www.on3.com/nil/news/penn-state-nittany-lion-collective-success-with-honor-launches-nil-ad-in-a-foreign-language/; See also Success with Honor – Penn State Nittany Lions Collective, On3 (June 8, 2023),
https://www.on3.com/nil/collectives/success-with-honor-37/.
[11] Bryan Dearinger, Name, Image, and Likeness: International Student Athletes, Univ. of Or., https://generalcounsel.uoregon.edu/name-image-and-likeness-international-student-athletes (last visited Nov. 18, 2024).
[12] Id.