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Chances Are Close to “Nil”: Limits to International Collegiate Players’ NIL Rights & Employment

By Lauren Cho · Fri, Apr 5, 2024 6:40 PM

For the past century, since the advent of the National Collegiate Athletic Association (NCAA), American student-athletes have been largely unable to profit off of their service, barred from being “paid to play.”1 The NCAA reasoned that because student-athletes were amateur players who were first and foremost students, the most compensation they could receive was in the form of scholarships.2 This was the case even if those student-athletes subsequently became famous for their roles in their respective sport—the university that employed the student-athlete would rake in the dollars while the players themselves would get nil.3 Meanwhile, the NCAA would profit by marketing the players’ name, image, and/or likeness (NIL) in video games, jerseys, and other commodities.4

In the United States, “NIL” pertains to the state-level right of publicity, which allows individuals to sell and make a brand out of their name, image, and/or likeness. In general, the right of publicity “prevents the unauthorized commercial use of an individual’s name, likeness, or other recognizable aspects of one’s persona.”5 Not all states recognize this right, however, with California and New York being the biggest proponents for NIL.

In June 2021, the Supreme Court ruled in Nat’l Coll. Athletic Ass’n v. Alston that restricting student-athletes’ compensation in the form of education-related benefits violated the Sherman Act.6 In this case, the Court condemned the NCAA for promulgating “price-fixing labor” standards which deprived student-athletes of their due compensation;7 and although it did not rule expressly regarding student-athletes’ NIL rights, the Court certainly hinted that the NCAA at least “lack[ed]” a “legally valid procompetitive justification for its remaining compensation rules.”8

In response to Alston, the NCAA, anticipating the Court’s rejection of its other compensation rules in the event of another lawsuit, voted to allow student-athletes to capitalize on NIL deals.9 Its July 2021 interim policy stated that student-athletes would finally be able to “monetize their NIL rights as well as to hire professionals to advise them (such as agents, managers and attorneys).”10

Per the NCAA’s new NIL policy, American student-athletes may “engage in NIL activities that are consistent with the law of the state where the school is located” and if a particular state does not have NIL laws.11 However, the same cannot be said for international student-athletes, where receiving any form of remuneration could subject them to serious consequences—including but not limited to immediate removal from the United States, complications from changing or adjusting their status,12 orfutureinadmissibility13 to the United States. Indeed, violating the terms of the applicable visa status would constitute unlawful presence14 in the United States, which could subject the foreign national to a three- or even ten-year ban from reentering the United States.15

From an immigration perspective, employment constitutes “an exchange of compensation for services, with compensation taking the form of money, clothing, or other benefits.”16 International student-athletes often come to the United States under an F-1 visa to eventually become successful collegiate players for their teams.17 F-1 students are nonimmigrants who have come to the United States to pursue study full-time or part-time (in some cases) at a pre-approved school for the purpose of obtaining some type of academic institutional degree.18 F-1 students are only allowed to work in narrow circumstances, which typically do not include NIL opportunities.19 A violation of the F-1 visa requirements—such as partaking in employment opportunities when not authorized to do so—will result in a cancellation of the student-athlete’s visa status.20

Again, receiving remuneration or compensation in any form in exchange for services as an international collegiate player will create problems down the line due noncompliance of visa regulations. For instance, the F-1 visa attaches certain stringent conditions to on-campus employment (e.g., students may not exceed 20 work hours per school week),21 and prospectively prohibits them from working off-campus during their first year.22 Depending on the facts, a player could inadvertently violate their terms of status; for example, if the player live-streams on Twitch from a hotel room, receiving a subscription from a Twitch viewer could be considered remuneration stemming from off-campus employment.

Even after the first year has passed, F-1 students may work and receive off-campus remuneration for their services under limited circumstances. One of these circumstances is curricular practical training (CPT), which provides work authorization before graduation (e.g., a fall internship). CPT must be issued by the school and must support or be related to the student’s chosen field of study. Alternatively, F-1 students may pursue optional practical training (OPT), which provides work authorization only after graduation, with the limited purpose of gaining experience relevant to the completed course of study. OPT is generally valid for up to one year, and the student cannot begin working until they receive an Employment Authorization Document (EAD). Nevertheless, neither CPT nor OPT would permit the F-1 student to gain any income for their performance as a collegiate athlete. Although the student-athlete may request an exception for off-campus employment, that exception will not be granted unless they can demonstrate severe economic hardship.23

To date, even though over three years have passed since Alston, the Department of Homeland Security (DHS) has yet to clarify whether international student-athletes may profit from their NIL rights. Without clarification, these student-athletes are unfairly deprived of the opportunity to capitalize on NIL deals.

A more recent decision in October 2023 by the National Labor Relations Board (NLRB) spells further trouble for international student-athletes; in Tr. Dartmouth Coll. v. Serv. Emps. Int’l Union, Loc. 560, Case 01-RC-325633 (Feb. 5, 2024) (Dartmouth v. SEIU 560), the Regional Director held that members of Dartmouth University’s men’s basketball team were employees under Section 2(3) of the National Labor Relations Act (NLRA).24 This decision creates revolutionary legal precedent by finding that student-athletes are “employees” who may unionize. The common law defines an “employee” as one who “(1) performs employment services or works for and (2) under the control of the employer (3) in exchange for monetary compensation.”25 Under the traditional common law analysis, the Dartmouth decision is controversial in several ways, especially regarding the latter two prongs.

First, for student-athletes whose academic enrollment depends on athletic scholarships, Dartmouth could render those scholarships obsolete. Universities wanting to avoid the appearance of control over the student-athletes’ employment are disincentivized from creating scholarship opportunities to avoid being labeled as an employer. In addition, scholarships may be deemed “monetary compensation,” further disincentivizing universities. In this way, Dartmouth further muddies the common law employer-employee analysis, although the law defines the right to control relating to an individual’s wages, hours, or working conditions; a scholarship, which is equivalent to a merit-based award, should not fall into this definition. The common law definition deviates from the “control” that universities exercise over their student-athletes, which, in Dartmouth University’s case, relates to external factors: the Ivy League and/or NCAA’s level of control among teams to ensure competitive equity and rules intended to protect students generally, not just student-athletes.26

Second, since the NCAA bans student-athletes from earning wages, it would not make sense to then label them “employees” under the meaning of the NLRA for receiving “compensation”—which Dartmouth claims includes not only direct monetary compensation, but also the intangible benefits such as education, training, opportunities, and merchandise they receive in exchange for competing on Dartmouth’s basketball team. As Dartmouth’s counsel correctly points out in its motion to stay the Regional Director’s decision, no court has ever found non-monetary compensation, such as intangible benefits previously listed, to be compensation under common law precedent.27

Lastly, Dartmouth is inconsistent with another NLRB decision, Mass. Inst. Tech. v. United Elec., Radio & Mach. Workers Am. (UE), Local 106, Case No. 01-RC-304042 (Mar. 13, 2023), where the Regional Director acknowledged that limitations on international students’ work authorization exist so that said students may comply with immigration requirements that do not allow them to pursue full-time work in the United States. One of those limitations is that they are “paid” with intangible benefits, such as, in MIT’s case, gaining valuable research experience and attaining academic credits in lieu of coursework. In this case, the Regional Director held that MIT’s research assistants were not employees under the meaning of the NLRA—directly clashing with Dartmouth’s opposite holding with respect to student-athletes. It is unclear how and why the NLRB should differentiate between student athletes and researchers, especially where the latter does in fact receive monetary compensation (albeit minimum wage or below) in exchange for their research services.

Thus, under Alston and Dartmouth, international student-athletes face two hurdles: per Alston, these student-athletes should be able to monetize their NIL rights but still face uncertainty until SEVP provides clarification; under Dartmouth, however, international student-athletes are not authorized to perform work in exchange for compensation. If NCAA athletic performance is considered work, then international student-athletes will inevitably violate their F-1 status by virtue of receiving compensation in the form of scholarships, education, or opportunities, thereby complicating future eligibility for work visas necessary to go pro or otherwise work in the United States after graduation.

Given that immigration law is already a challenging area rife with archaic rules that did not anticipate the global and dynamic nature of sports, media, and entertainment, certain NIL and employment benefits remain effectively out of international collegiate players’ reach. Unfortunately, without further guidance, these international student-athletes may never know for sure, whilst watching their domestic counterparts thrive in a land of supposed equal opportunities.

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