The state of Connecticut is celebrating another NCAA basketball championship, but its U.S. senators are lamenting a broader problem in college sports.
Two weeks ago, Sens. Richard Blumenthal and Chris Murphy, both Democrats, wrote a letter to Homeland Security Secretary Alejandro Mayorkas urging him to address current regulations that make it difficult for foreign student athletes to capitalize on their Name, Image and Likeness.
Blumenthal and Murphy noted that both the University of Connecticut’s men’s and women’s basketball teams had international players who made “significant contributions” this year (Blumenthal later mentioned Adama Sanogo and Aaliyah Edwards specifically), and added that, nationwide, more than 20,000 international students currently compete in collegiate athletics.
“As these athletes compete in their sports’ national championships and other high-profile competitions, any one of them could gain notoriety overnight and have substantial NIL opportunities presented to them,” the senators wrote. “The only thing standing in their way is our outdated regulations on the terms of their visas. This is unacceptable.”
The problem stems from the fact that most foreign student athletes are on F-1 visas, which permit work only in limited circumstances. In this context, “work” is often equated with earning money from a U.S. source.
As Blumenthal and Murphy correctly note, current regulations do not “speak to the unique circumstances” of foreign students’ use of their NIL to earn money. This creates two classes of student athletes—U.S. athletes who are able to take any NIL deal they are offered, and foreign athletes who could jeopardize their immigration status for doing the same thing.
There are some workarounds. For example, foreign student athletes can conduct NIL activities while outside the U.S. Others have been successful in converting from an F-1 to an O-1 visa (for individuals with outstanding abilities) or P-1 visa (for athletes, artists or entertainers), which would allow them to work, attend class and participate in their sport.
Neither is a satisfactory long-term solution, however. There are logistical challenges to going abroad, and legal costs and filing fees make applying for a different visa an unattractive option for many student athletes.
A sensible solution would be for DHS to turn to the B-1 Temporary Business Visitor visa as a model. B-1 visitors are barred from “performing skilled or unskilled labor” in the U.S. However, the government has issued rules and guidance regarding a range of business-related activities that are considered permissible (i.e., not “labor”), such as engaging in certain commercial transactions, consulting with business associates, traveling to conferences, short-term training and negotiating contracts.
Even professional athletes can use B-1 visas to participate in tournaments or sporting events if they only receive prize money, which, for some sports, can mean earning millions of dollars.
There is no reason DHS cannot do the same for F-1 international students. After all, they are—first and foremost—students, and most NIL deals are worth far less than the amounts professional athletes can receive competing in multiple tournaments or events.
Many NIL activities require very little of the athlete and may include signing autographs, making personal appearances or posting on social media. These activities are merely incidental to visa holders’ status as student athletes, which requires them to maintain a full course of study. This kind of approach would allow international athletes to secure NIL deals and carry out their end of the bargain in the U.S.—not outside the country.
To date, DHS has not engaged relevant stakeholders on this issue and appears to lack a true understanding of the NIL opportunities available to students. It has been nearly two years since the NCAA adopted its NIL policy, and the government has yet to issue any guidance.
The good news is Blumenthal and Murphy appear to have grabbed Mayorkas’ attention. At a Senate Judiciary Committee hearing last week, Mayorkas thanked Blumenthal for the letter and said he had not previously been aware of the issue.
“We are indeed looking at the issue very carefully,” he said, adding, “We will move with deliberate speed … we will move as quickly as we can.”
Until then, the two-tiered system of college sports will continue. DHS, the ball is in your court.
Gabriel Castro is a Senior Associate at BAL who leads the firm’s Los Angeles office and Sports and Entertainment practice. Tiffany Derentz is a Senior Counsel at BAL who leads the firm’s Washington, D.C. office. She is a member of the firm’s Government Strategies and Sports and Entertainment teams. Castro and Derentz authored a white paper on the NCAA’s NIL rules in 2022 and appeared on a recent episode of the firm’s podcast to discuss the issue.
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