Numerous state laws on college student athletes being compensated for the use of their name, image, and likeness (NIL) took effect on July 1, 2021. Other states are planning or considering such legislation, and there are several bills being considered in Congress, which could preempt state laws if passed. The Business of College Sports Tracker: Name, Image and Likeness by State gives an idea of the scope of state and federal legislative activity.
For international students engaged in college sports, this brings up the question of whether the Department of Homeland Security (DHS) would consider compensated NIL arrangements as "employment" for purposes of maintaining nonimmigrant status, and if so, whether the student athlete's immigration status permits such employment.
Nonimmigrants cannot work in the United States unless the employment is specifically provided for in the regulations. 8 CFR 214.1(e) provides a general rule:
(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.
DHS has not opined on the topic of whether compensated NIL arrangements constitute employment under federal immigration law, or on the impact of such arrangements on the various nonimmigrant statuses. On June 21, 2021, the Student and Exchange Visitor Program (SEVP) sent a broadcast message to stakeholders stating:
"The Student and Exchange Visitor Program (SEVP) is aware of and actively monitoring proposed federal and state legislation pertaining to the use of name, image and likeness for student athletes, including F and M nonimmigrant students. The program is working with its partners within the U.S. Department of Homeland Security to review how this legislation affects international student athletes and will provide updated guidance via Broadcast Messages, Study in the States, social media and SEVP field representatives."
Factors that could impact the outcome for a particular student include:
- the nature of the specific NIL activities (which gets to whether the activity constitutes employment)
- the student athlete's immigration status (for example, a student could be in F-1 or J-1 status, or be here as a dependent in another nonimmigrant status; each of these statuses would require a separate analysis, unless DHS could craft a general policy that NIL activity authorized under a state statute would be permissible in all nonimmigrant categories, incident to status).
- the specific provisions of state, federal, and NCAA rules
Absent clarification from DHS, schools and international student athletes should approach NIL questions with caution. Schools should assess institutional risk, and international students should seek advice from an experienced immigration lawyer before entering into an NIL agreement or engaging in compensated NIL activity.
ESPN article, NCAA's international athletes still facing NIL challenges, Dan Murphy and Michael Rothstein (March 31, 2023)
Senator Richard Blumenthal questions DHS about NIL rules (March 28, 2023)
NCAA Announcement: NCAA adopts interim name, image and likeness policy (June 30, 2021). "Governance bodies in all three divisions today adopted a uniform interim policy suspending NCAA name, image and likeness rules for all incoming and current student-athletes in all sports." "Interim policy goes into effect Thursday."
SEVP Broadcast Message 2106-03, "SEVP Monitoring Student Athlete Legislation," (June 21, 2021)
Fragomen Immigration Conversation. "Fragomen’s Aaron Blumberg discusses the upcoming changes to Name, Image, and Likeness regulations both in the state of Florida and in the NCAA, that present significant challenges for international student athletes whose immigration status limits their ability to financially benefit from these changes. The podcast also features guest speakers Kristen Hagen, Associate Director at Center for Global Engagement FSU, Christina Khan, Director at UCF Global and Kat Jones, Assistant Director of Athletic Compliance at UCF."
Sample State Law. 2020 Florida Statutes, Title XLVIII, Ch. 1006, Sec. 74 (effective July 1, 2021).
National Collegiate Athletic Association v. Alston. U.S. Supreme Court antitrust case decided on June 21, 2021. Issue: "Whether the U.S. Court of Appeals for the 9th Circuit erroneously held, in conflict with decisions of other circuits and general antitrust principles, that the National Collegiate Athletic Association eligibility rules regarding compensation of student-athletes violate federal antitrust law." A unanimous court held that "The district court’s injunction pertaining to certain NCAA rules limiting the education-related benefits that schools may make available to student-athletes is consistent with established antitrust principles." The district court injunction upheld by the Supreme Court case in the Alston case had court "enjoined the NCAA only from limiting education-related compensation or benefits that conferences and schools may provide to student-athletes playing Division I football and basketball." This case, while not related to the State NIL law issue, does establish that the NCAA is generally subject to antitrust laws.