The debate over whether or not collegiate student athletes should be paid has consumed the sports world for the past two decades, especially as the National Collegiate Athletic Association (NCAA) and the universities have raked in billions of dollars in revenue year after year. A collection of former and current Division I athletes sued the NCAA over two main issues: limits imposed by the NCAA on the education-related benefits that schools can offer student athletes, meaning scholarship money, and whether student athletes can profit off their name, imagine, or likeness (NIL), such as jersey sales or from video games depicting the players. In June 2021, the U.S. Supreme Court unanimously ruled that the NCAA’s limits on education-related benefits violate antitrust law, paving the way for universities to compete for top student athletes by offering laptops, internships, and other tangibles related to their studies as part of the recruiting pitch.
In a strongly worded concurring opinion, Justice Brett Kavanaugh wrote, “The bottom line is that the NCAA and its member colleges are suppressing the pay of student athletes who collectively generate billions of dollars in revenues for colleges every year.” He continued, “Those enormous sums of money flow to seemingly everyone except the student athletes.” While this ruling did not specifically address the NIL issue, the NCAA must have felt that they would inevitably lose on that issue as well and promptly voted to allow student athletes to profit from NIL deals, subject to any relevant state laws.
Within minutes of the new NIL policy going into effect, student athletes started signing deals ranging from representing wireless telecommunication companies, to being paid in BBQ, to pretty much anything in between. Alabama’s star quarterback reportedly has several deals that total $1 million.
But not every student athlete, including some of the biggest names in men’s college football and basketball, have cashed in. Despite the years-long legal battles, it appears that the federal government has been caught flatfooted on whether foreign student athletes can make NIL deals under the terms of their immigration status.
This is a clear example of policymakers looking at immigration in a silo instead of recognizing that immigration cuts across nearly every subject matter.
Unlike most of the legal immigration system, which falls under U.S. Citizenship and Immigration Services (USCIS), foreign students are under the jurisdiction of U.S. Immigration and Customs Enforcement’s (ICE) Student and Exchange Visitor Program (SEVP). On July 19, 2021, or 19 days after the NIL policy went into effect, SEVP issued a Broadcast Message that said they “continue[] to assess the issue of F and M international student athletes receiving compensation for the use of their name, image and likeness. ... SEVP will continue to monitor current and pending state and federal legislation on this issue and will provide additional updates.”
Eight months later, SEVP has failed to provide follow-up guidance or issue new policy or regulations on the issue, effectively sidelining 12 percent of college athletes who are citizens of other countries.
A foreign student athlete’s eligibility for NIL deals may depend on the immigration status he or she holds. While most are likely on F-1 student visas, it is possible that other foreign student athletes are on derivative visas, like H-4, based on the principal visa held by a parent.
The relevant regulation covering the ability of a nonimmigrant to work in the United States is 8 CFR 214.1(e), which reads:
(e) Employment. A nonimmigrant in the United States in a class defined in section 101(a)(15)(B) of the Act as a temporary visitor for pleasure, or section 101(a)(15)(C) of the Act as an alien in transit through this country, may not engage in any employment. Any other nonimmigrant in the United States may not engage in any employment unless he has been accorded a nonimmigrant classification which authorizes employment or he has been granted permission to engage in employment in accordance with the provisions of this chapter. A nonimmigrant who is permitted to engage in employment may engage only in such employment as has been authorized. Any unauthorized employment by a nonimmigrant constitutes a failure to maintain status within the meaning of section 241(a)(1)(C)(i) of the Act.
Current F-1 regulations only permit employment in two narrow circumstances. Under 8 CFR 214.2(f)(9), an F-1 foreign student may engage in on-campus employment provided it is “performed on the school’s premises, (including on-location commercial firms which provide services for students on campus, such as the school bookstore or cafeteria), or at an off-campus location which is educationally affiliated with the school. ... In any event, the employment must be an integral part of the student’s educational program.” (Emphasis added.) The regulations permit F-1s to engage in off-campus employment but only if they can demonstrate “severe economic hardship” and have completed a full academic year as an F-1 in good standing.
Separate regulations allow an F-1 student to engage in Optional Practical Training (OPT) or Curricular Practical Training (CPT). OPT is an illegal regulatory construct that permits an F-1 to work for 12-months after obtaining a degree (and an additional 24-months if a STEM degree) if the job is directly related to the course of study. Similarly, CPT allows an F-1 to gain practical experience through employment or internships directly related to the major while the student is still pursuing the degree.
It is highly unlikely that a foreign student athlete would be on an M-1 visa, as those are for vocational schools.
It is less likely, though possible, that the foreign student athlete could be the derivative (spouse or child) of a work-authorized alien in the country. The most plausible scenario would be H-4 status of a principal H-1B. By statute, H-4s are prohibited from working. While the unlawful H-4 regulation allows certain spouses to work, the terms of eligibility for this illegal work permit program would not encompass collegiate student athletes.
The relevant question that remains unanswered is: Do NIL deals constitute employment? If yes, are they permissible under current F-1 regulations? At first glance, that answer appears to be “no” because NILs are not an “integral part” of a student’s educational program nor could a foreign student athlete on a full scholarship make a persuasive case for suffering “severe economic harm”. If NIL deals are not employment, what are they and would a foreign student athlete violate his or her immigration status under the current statutory and regulatory framework?
Until the Department of Homeland Security defines NIL deals, it is unclear if foreign students are outright barred from benefiting from NILs or if they are permissible after a regulatory or sub-regulatory policy change. Alternatively, Congress could pass a law that expressly permits foreign student athletes to engage in NIL deals if the current framework prohibits it and lawmakers decide to make the exception.
The Biden administration claims that it wants to remove “barriers” to immigration benefits. The $1-billion-generating NCAA March Madness basketball tournament is about to tip-off with Congolese-born Oscar Tshiebwe, who plays for the University of Kentucky, likely the nation’s top player. I cannot think of a greater, actual barrier than the best player not cashing in on NIL deals while his teammates and less-skilled players across the country are enjoying free food, merchandise, and other lucrative partnership benefits.
Ironically, the Biden administration’s delay in issuing NIL guidance for foreign student athletes may be the lone instance of U.S. immigration law financially benefiting American workers over their foreign counterparts.