NIL Controversy: International Student-Athletes Can’t Cash In

A Glaring Controversy With Name, Image, Likeness (NIL): International Student-Athletes Can’t Cash In

Florida State University swimmer, Izaak Bastian was excited to learn student-athletes can profit from Name, Image, and Likeness (NIL) deals. His excitement died when the 2021 Olympian realized his Bahamian citizenship would get in the way.

“It was really discouraging to learn about my ineligibility for NIL deals,” said Bastian, who competed for Florida State from 2018 to 2022.

Northwestern University senior field hockey player, Ana Medina Garcia shared a similar sentiment.

“I was excited until I found out I wasn’t really able to take part in it,” said Garcia, a native of Madrid, Spain.

As 2021 national champions and reigning NCAA runners-up, the Wildcat field hockey team has team NIL deals with companies like Dunkin’ Donuts. But Garcia is ineligible to partake in the windfall as an international student.

“I see my teammates participate [in the deal], and I’m like, ‘I wish I could do it,’” Garcia added.

Seidu Shamsudeen, a University of Delaware soccer player from Ghana, reacted slightly differently. At first, he never thought much of NIL, as he believed it would only benefit football and men’s basketball players. But, as he saw how any athlete could utilize NIL, he said he became exhilarated—until he found out his international student status prohibited him from doing so.

“It was frustrating,” said Shamsudeen, who also played for Villanova University from 2018 to 2021. “Especially when I see on Instagram where other athletes that have really good deals and I have more followers than them, and I feel like I could promote [a company’s product] much better.”

International students pursuing their education in the U.S. require a student visa, which comes with extremely restrictive employment authorization laws. According to the U.S. Citizenship and Immigration Services (USCIS), international students are only permitted to work on campus during their first academic year in the U.S. Following the first year, they may obtain off-campus employment, but only if it directly relates to the international student’s field of study.

Ksenia Maiorova, a sports immigration lawyer based in Orlando, Florida, said it is almost impossible to find a NIL deal that falls under the F-1 visa requirements.

“If a sponsor wants you to sign autographs, attend promotional events, generate content, and post on your social media, that’s going to be outside the scope of what is generally permissible with an F-1 visa,” said Maiorova, a Russian native.

Given the difficulty of finding a deal that fits within his athletic training major, Bastian said he quickly lost hope in profiting from his NIL during his collegiate career.

“It was a very gray area with international student-athletes and getting paid, and nobody was really sure how it would work with the [F-1] visa, so I stopped looking into it,” he said.

Since NIL’s inception, stakeholders have tried to find ways to circumvent the immigration restrictions for international student-athletes.

One potential loophole is having the athletes sign and complete the obligations associated with NIL deals while they are in their home countries during holidays.

Despite the potential opportunity, Bastian felt there was too much at stake to attempt.

“It seemed like a lot of hoops to jump through,” Bastian said. “And I didn’t want to make a simple mistake that could have cost me my visa.”

Shamsudeen had similar hesitations, labeling the ambiguity surrounding this potential avenue as “too risky.”

Maiorova agreed with the pair and fears for the future visa status of athletes who have decided to take advantage of this “gray area.”

“Consular officers have almost unlimited discretion to approve or deny your visa [extension],” Maiorova said. “Is the consular officer going to be interested in where, geographically, the content was created? Or are they just going to go on Instagram, see that somebody is posting content, it’s got the athlete’s face on it, he’s in a video promoting whatever product, and they’re just going to say ‘you’re on an F-1 visa, why are you promoting this product?’”

Looking at potential ways athletes can legally profit from NIL, Maiorova outlined three special visa options.

The P1-A visa is the lowest level of extraordinary-ability visas for elite-level athletes, according to Maiorova. It is reserved for athletes competing “at an internationally-recognized level of performance.” It means an eligible athlete is one of the best in the NCAA in their sport and is selected to represent their home country at high-level international competitions like regional championships, world championships, and the Olympics.

Another option is the O-1 visa, which the USCIS grants to athletes who are “one of the small percentage who have arisen to the very top of the field.” So far, one athlete has secured an O-1 visa: Austin Peay University basketball player Hansel Emmanuel, who, last October, became the first college athlete to gain approval for the authorization. The rising sophomore from the Dominican Republic has amassed over 1.6 million followers on Instagram, going viral on social media for playing competitive basketball despite having one arm.

The third option would be obtaining a green card based on exceptionally high sports achievements. Notably, Maiorova recently assisted the University of California, Berkeley track and field athlete Camryn Rogers in receiving an “extraordinary-ability” green card through the Canadian native’s Tokyo Olympic performance, where she became the youngest woman ever to make an Olympic hammer-throw final.

While all are potential avenues for international student-athletes to profit from NIL, they are only for the top athletes.

“If you’re very good in the NCAA, chances are you are probably good enough for one of these classifications,” Maiorova said. “But if you’re a Division II field hockey player from some school no one’s heard about, and your local pizzeria wants to offer you $500 a semester towards books to sign autographs, you’re not going to be eligible for one of those categories, and thus, you’re precluded from being able to take the money.”

She added, “it’s tragic because arguably those are the kids that need [NIL money] more because they don’t have an imminent professional career with the promise of riches. These are the kids that are here for an education. They’re already paying three times the in-state tuition and are already kind of strapped for money. I think it’s good, common, humanitarian sense to give them the opportunity to earn. However, under the existing law, there’s not that option.”

Visa application fees and the need for an attorney for the process can also quickly outrun the benefits of the deal.

“At some point, it’s also a cost-benefit analysis,” said Maiorova. “Do you spend the money to transition [to a P-1A or O-1 visa] for a $2,000 deal? Probably not, because you’ll spend more money to change your visa status than you will [earn] from the NIL [deal].”

Looking to the future, how does NIL get to the point where it is universally available to foreign athletes?

There are two paths forward, according to Maiorova.

The first, she said, is a regulatory fix, where an amendment is made to the F-1 visa, giving employment authorization to international student-athletes specifically for NIL. The other is a public policy memorandum to consider NIL deals as on-campus employment, making it legal for foreign athletes to participate.

Despite the benefits these changes will have for the more than 24,000 international students who compete in the NCAA, given the political situation in the country, Maiorova does not feel confident in any change happening soon.

“There is a lack of political agreement on immigration between the two parties, and they just don’t seem to be convinced that this is a large enough problem to warrant their attention, which I think is misguided.”

While Bastian wrapped up his NCAA career last year, he said he hopes international student-athletes can profit from NIL as soon as possible.

“I see [international student-athletes profiting from NIL] as an absolute win,” Bastian said. “It’s just another way of funding some of these international athletes that may not have the support at home to go to college in the United States.”

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