In 2021, the NCAA marked a historic moment by permitting college athletes to profit from their name, image, and likeness (NIL) through endorsements, autograph signings, and personal appearances. This policy shift sparked a booming market, estimated at $1 billion annually by NIL company Opendorse. However, amidst this wave of opportunity, international college athletes find themselves excluded from cashing in on NIL deals due to visa restrictions. In looking to solve this issue, international student-athletes find hope within bipartisan legislation.
Most international college athletes enter the U.S. on F-1 visas, which severely limit their ability to work and earn money while in the country. International student-athletes on F-1 visas face a conundrum as NIL deals, which are deemed as labor, violate the terms of the student’s visas. F-1 visa regulations heavily restrict international students' ability to engage in employment, with exceptions mainly limited to on-campus work or post-graduate practical training directly related to their field of study. These restrictions clash with NIL opportunities, leaving international student-athletes facing a dilemma: sacrifice potential earnings from NIL activities or risk violating visa regulations and face severe penalties.
Despite these challenges, some international student-athletes, like Purdue’s Zach Edey and UConn’s Aaliyah Edwards, have found innovative ways to monetize their NIL through avenues such as passive income streams and offshore NIL activities without violating visa restrictions. International student-athletes can explore opportunities for passive income, such as licensing agreements or royalties, which do not require active participation or work within the U.S. This could involve licensing their image or likeness for use in merchandise. For example, Edey has found a way to generate income from his NIL by licensing it to The NIL Store, operated by Campus Ink. This platform offers a range of merchandise featuring Edey and other college athletes, including custom jerseys, shirts, hoodies, and accessories. Despite being unable to actively engage in promoting his merchandise while in the U.S. due to visa restrictions, Edey's involvement in this business venture can be considered passive income.
Engaging in NIL activities while off U.S. soil provides another viable option for international student-athletes. By participating in promotional events, endorsements, or media appearances on their home soil, international student-athletes like Aaliyah Edwards can generate income without violating visa restrictions.
While these athletes have seized what opportunity they can to capitalize on their NIL, they often face a far more convoluted path compared to their American peers. International college athletes exhibit great dedication toward their athletic pursuits and generate revenue for their institutions, just like their American colleagues. Yet, these athletes must navigate the complexities of NIL regulations, jump through hoops, and risk their visas - all for the prospect of harnessing their full potential NIL revenue, a benefit seemingly more readily available to their American counterparts.
In response to these issues, Representative Mike Flood (R-NE) and Representative Valerie Foushee (D-NC) introduced the “Name, Image, and Likeness for International Collegiate Athletes Act.” This proposed bill aims to amend the Immigration and Nationality Act to provide F visas and employment authorization for international student-athletes who enter into endorsement contracts for the commercial use of their names, images, and likenesses [1]. Unlike previous NIL reform bills, this proposed legislation offers a straightforward solution to the unique challenges faced by international college athletes. Representative Foushee has expressed that "[t]his bill would create a sub-category within the F-1 visa tailored for international student-athletes who want to pursue NIL opportunities, and they would be permitted to do so as long as they are progressing in their degree program." [2] If passed, it would afford international athletes the same opportunities to capitalize on their NIL as their American counterparts, marking a significant step towards equity in collegiate athletics.
In another striking example of bipartisan cooperation, Senators Pete Ricketts (R-NE) and Richard Blumenthal (D-CT) have united with colleagues from various political backgrounds. Together, they crafted a letter directed to Department of Homeland Security (DHS) Secretary Alejandro Mayorkas, urging prompt action to safeguard international student-athletes’ access to NIL opportunities without risking their F-1 visas. The letter states that despite the DHS’s commitment to move quickly on the matter, the DHS has failed to update its rules over a year later, resulting in international students having to undergo another year without legal protections or clarity, leading star athletes to turn down opportunities, go through extreme hoops to stay in good standing with their visas or consider leaving school [3]. The letter also bore the signatures of Senators Chris Murphy (D-CT) and Shelley Moore Capito (R-WV), emphasizing the bipartisan nature of the initiative. Notably, while other facets of NIL regulation and proposed federal laws have encountered obstacles stemming from partisan divides on antitrust enforcement within collegiate sports, the endeavor to secure equitable rights for both domestic and international athletes appears to transcend party affiliations.
While debates on various aspects of collegiate sports continue, bipartisan support for enabling international athletes to benefit from NIL opportunities should be a consensus. As discussions progress, ensuring fairness in equal monetary opportunity for all student-athletes, regardless of nationality, should remain a top priority.
Bobby Hartwick is a second-year law student at Saint Louis University School of Law. He can be found on Twitter @BobbyHartwick and on LinkedIn (Bobby Hartwick).
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