Sports

International student-athletes face an NIL conundrum, and no one seems to have an answer

Robert Seiger, an immigration attorney who represents dozens of professional athletes, likes to joke that, with the possible exception of tax law, he’s got just about the most boring job in sports.

Perhaps that’s why Seiger’s particular niche in the sports world seems to have been completely overlooked as states rush to pass new laws allowing college athletes to profit from their name, image and likeness (NIL). The new laws, of which at least a half-dozen are set to take effect in July, provide a framework for domestic college athletes to make money from things like endorsements, autographs or hosting camps. However, international student-athletes, which account for about 12% of Division I athletes, according to the NCAA’s latest report, remain in a legal no man’s land, thanks to a caveat within the visa program that prevents anyone on an F (or student) visa from earning a substantial income while studying in the U.S.

“They’re essentially a student playing a sport, and they’re not being paid [now],” Seiger said. “If, through NIL, you go to a fan event and get compensated for autographs or get a sponsorship deal for your shoes, that’s real money, real compensation. So does that ultimately, from a labor and employment perspective, change their classification?”

ESPN posed that question to more than a dozen coaches, ADs, compliance directors and athletes in states poised to enact new NIL laws in 2021, as well as several politicians responsible for the new legislation, and none offered anything approaching a clear path forward. Several indicated ESPN’s questions represented the first time they’d even considered the issue, while several others said they’d been in contact with local government leaders but believed any decisions would need to be made at the federal level.

“Any international athletes should work with the government to understand how any new rules apply to their particular visa,” an NCAA spokeswoman said.

NCAA leaders have been adamant while discussing NIL changes that any new rules should make sure college athletes don’t cross into an area where they might be seen as professionals. However, when asked if any college athletes who obtained P-1 visas would be in jeopardy of losing their eligibility, the NCAA spokeswoman said, “NCAA rules defining professional athletes are not based solely on an individual’s visa.”

While F1 visas allow for international students to work on campus, as well as other limited forms of income with prior approval from immigration officials, any revenue from NIL would not appear to fit under those narrow guidelines.

Seiger works with professional athletes in the NFL, NBA and NHL who instead opt for a P-1A visa. This visa type can be obtained by an amateur athlete, but it requires they are in the country “solely for the purpose of performing at a specific athletic competition,” according to the U.S. Citizenship and Immigration Services (USCIS), which would not account for enrollment as a student.

“That’s a huge potential mess,” Seiger said. “The federal government would similarly have an issue with that, where if you’re really coming over to play your sport and be paid, are you a professional athlete? Are you trying to bifurcate the employment visa structure? I think it can create a real problem because the government is pretty hard-core. Now you have these guys out there spending more time with the folks sponsoring them, I can see it opening a Pandora’s box on how the foreign student-athlete will be able to come over here.”

Florida State’s senior associate AD for governance and compliance, Michele Forte-Osborne, said in an email to ESPN that the school has discussed the issue, but said it was likely the federal government would need to intervene for the schools to gain any clarity.

“Federal immigration law will control what our international student-athletes can take advantage of under the new state laws,” Forte-Osborne said. “Federal immigration laws govern immigration and visa matters, and therefore, it is those laws that have to be addressed.”

Multiple congressional aides working for politicians who have been deeply involved in the debate over federal college sports legislation said the issue with international student visas has not yet been a part of that conversation. One said an amendment could be added to whatever federal bill emerges from the menu of options in front of Congress at the moment. Hoping to create guidelines on the national level, federal legislators have made progress toward a cohesive agreement in recent weeks but have yet to agree to bring a bill forward for a vote. State legislators also say that they weren’t focused on the issue while crafting their bills.

“That is a good question that I have not had as a discussion,” Ohio Sen. Niraj Antani said in May on the day he introduced a bill that would open the door for athletes in his state to start making money this July. “But I will now.”

For clarity on the issue, ESPN reached out to the U.S. Department of State, which referred the question to the U.S. Citizenship and Immigration Services, which then deferred to Immigration and Customs Enforcement (ICE) for all issues regarding study visas. ESPN shared a half-dozen questions with ICE in reference to NIL legislation and was told simply that ICE’s “student and exchange visitor program is currently evaluating new developments in Florida law as they pertain to college athletes with F visas,” according to a statement from public affairs director Jonathan Moor. Florida was first among a growing list of states to pass a law that will open NIL opportunities starting on July 1.

The bureaucratic runaround is emblematic of a process that has unfolded in fits and starts with individual state legislatures, the federal government and the NCAA all working on different versions of NIL legislation with varying degrees of success, leaving many athletic departments in a state of limbo on how to move forward. The NCAA first formed a committee to study NIL changes more than two years ago. The Division I Council is expected to vote on new rules later this month, but many details like the international athlete dilemma have yet to be resolved.

One administrator noted he hoped his state would push back its start date for NIL legislation to take effect so they wouldn’t represent the canary in the coal mine trying to navigate a murky process, and he pointed to the conundrum over international athletes as a perfect example of the potential pitfalls.

While international students represent less than 1% of Division I college football players, according to the NCAA’s most recent report through the 2018-19 school year, other Division I sports have a far higher proportion of players participating on F visas — including more than 60% of tennis players, 37% of men’s soccer players and 32% of women’s golfers — and the number of international student-athletes has increased from 9.8% in 2014 to 12.4% in 2019.

Seiger said that, while the total value of NIL deals might be limited for most foreign student-athletes, the visibility of the income is more likely to attract potential problems with student visas than the particular amount the athletes are earning.

“The greater compensation means it’s more likely this will be out there,” Seiger said, “but ultimately the extent to which it triggers immigration [to get involved], the government wouldn’t see it any differently between $150 or $100,000.”

Miami punter Lou Hedley comes from Australia, part of a wave of Australian rules footballers-turned-punters who have garnered a foothold as specialists in the U.S. He became a viral sensation after signing with the Hurricanes in 2019, due in part to his numerous tattoos and a backstory that included owning a surf shop in Indonesia before taking up American football. Last year, he was a finalist for the Ray Guy Award, given to the nation’s top punter, and he figures to be among the more marketable international athletes in college football.

“The university and coach [Manny] Diaz have done everything to teach us what’s about to happen, when the rules come into play in Florida,” Hedley said. “I know a lot of the boys are really excited about it, and it’s great to give everyone here the opportunity to sort of build their brand. But as for me, I may not do anything. I’m just not too sure what I can or can’t do.”

Hedley said he’d be OK with sitting out NIL if it meant he could keep playing college football, but that might not be the case for other international student-athletes who might have a higher NIL revenue stream or lack an avenue for playing professionally after college, as Hedley hopes to do.

At the NAIA level, they’re already wrestling with the problem of international students earning an income. NAIA schools enacted nationwide NIL reforms in October 2020, and they are still reckoning with the question of eligibility for international students.

Chesney Sallee, the vice president of membership value and governance for the NAIA, said regulations are likely to impact international athletes’ ability to profit from NIL legislation. F visas do make allowances for minimal “on campus” income for international students, and Sallee believes NIL revenue could fall within those parameters, but noted that “for whatever reason, the topic of limitations from international visas was not a concern raised by these students [or our guiding athletic directors], so it was not a topic we dug into too deeply.”

Chloe Mitchell, a volleyball player at NAIA Aquinas College in Michigan, earned the distinction of becoming the first collegiate athlete to profit from the new NIL rules last year. Mitchell, a YouTube and TikTok star with her do-it-yourself home projects, then used her experience to launch a company, along with her parents, called PlayBooked that pairs student-athletes with endorsement opportunities. Her mother, Kimberlee, said they’ve already run into some setbacks in trying to help international athletes get paid.

“We have discovered through several foreign athletes that they are unable to monetize their NIL rights,” she said. “We are looking into other non-monetary means at PlayBooked to support their plight.”

At the NCAA level, dozens of schools have hired consulting firms to help them get ready for NIL changes. The firms are teaching athletes how to build their brands and teaching schools how to track endorsement deals and stay compliant with new laws, but they are not providing legal guidance on immigration issues. One leader of a prominent NIL consulting company told ESPN that the nuances of immigration law fall outside the company’s expertise, so it has been recommending that schools contact immigration attorneys with those questions.

However, Seiger said there simply aren’t any clear answers under current immigration laws, and he’s seen few schools or legislators prioritize the issue.

“On the front end, this is like a sleeper issue that ultimately isn’t going to get settled until they figure out what the landscape of compensation looks like,” Seiger said. “These [athletes] could really run afoul of their immigration status if USCIS really thinks about it. That could potentially cause a lot of problems if they say, ‘OK, if you’re really coming over here to be paid, then we have employment visas. Go get one of those.'”

One school administrator told ESPN they had been in touch with the U.S. Department of State and did not believe that language in student-athletes’ visas could serve as a potential way to challenge amateurism, but it certainly would lead to an obvious paradox if the NCAA viewed its domestic athletes as amateurs, while athletes from outside the U.S. were participating on employment visas.

The paradox dovetails with new legislation recently submitted by Sens. Chris Murphy and Bernie Sanders that would revise labor laws to formally make college athletes into employees of their schools and allow them to unionize. The bill — which the NCAA strongly opposes — is one of a handful of active federal legislative efforts to reform the college sports industry that are likely to be debated at some point in 2021.

“Big-time college sports haven’t been amateur for a long time, and the NCAA has long denied its players economic and bargaining rights while treating them like commodities,” Murphy said in a news release announcing the legislation.

Seiger suggested the ultimate outcome could be a court case where either an international college athlete challenges NCAA rules that prevent them from benefiting from NIL, or ICE, which handles all student visas, attempts to deport a college athlete for profiting from NIL. Either option would be a potentially huge black eye for the NCAA.

“Immigration’s position will ultimately drive the NCAA to ask how to handle this,” Seiger said. “You can’t come to the border at JFK [International Airport] with a backpack full of signed endorsement deals and say you’re here primarily to be a student. It just doesn’t add up. Even the optics don’t look right.”

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