Potential employee model could dramatically impact international college athletes

On3 imageby:Eric Prisbell11/22/23

EricPrisbell

Amid the intensifying industry debate over whether college athletes are employees of their universities, there’s one group that is hardly discussed – international college athletes.

Ongoing proceedings in the courts and with the National Labor Relations Board could in time result in at least some college athletes being formally designated as university employees, which would radically reshape the college sports paradigm. 

And immigration attorney Ksenia Maiorova, who co-authored a book titled NIL X Immigration, with attorney Amy Maldonado, believes that the potential employee model would have a dramatic impact on international student-athletes.

“If these efforts by Dartmouth [men’s basketball players] or some other organizations are successful, we will have potentially a situation where – if student-athletes are designated as employees – overnight we could have any number of international student-athletes that are immediately in violation of their status,” Maiorova told On3. “We’ve got 20,000-plus international student-athletes in the NCAA. If they’re all deemed employees, then they are in violation of their student status immediately, with no recourse because they can’t be employees.”

U.S. immigration regulations prohibit international students in the U.S. on F-1 student visas from participating in employment. F-1 visas provide for only limited employment authorization types, most of which must be connected to the degree the athletes pursue. 

As a result, it has been exceedingly difficult for international athletes – about 12% of Division I are international athletes – to legally participate in NIL in the U.S. Typical NIL opportunities require an athlete to perform a service for compensation, which conflicts with immigration policy.

There are opportunities for them to monetize their brands outside U.S. borders, as former Kentucky men’s basketball standout Oscar Tshiebwe demonstrated when he made a reported $500,000 during a preseason trip to the Bahamas in August 2022.

College stakeholders unaware of implications

If college sports leaders ultimately usher in an employment model, the impact on international athletes would be so significant and far-reaching that Maiorova believes the U.S. Department of Homeland Security would no longer be able to ignore it. 

“They’ll have no choice but to take their heads out of the sand and actually consider how we change this,” she said.

As the college athletics industry continues to assess the consequences of a potential employment model, Maiorova said, she has yet to have a conversation with an institution that has considered the implications of the model from an immigration perspective. 

“To the extent that I’ve brought it up to various stakeholders, that’s just been kind of a novel concept for them – they just go, ‘Oh, well, we haven’t thought about that,'” she said. “I don’t get the sense that a lot of institutions are aware of the immigration implications of this.”

NIL legislation introduced to help international athletes

Overall on the NIL front, Maiorova and Maldonado work to help some athletes acquire different visas so they can partake in NIL opportunities like their collegiate counterparts. Those options include P-1 visas, which are typically for professional American athletes, and O-1 visas, which are for students with “extraordinary” ability in a number of disciplines. The arduous pursuit of those visas can be tedious and protracted. 

Under current U.S. policy, international athletes do have a narrow avenue for monetizing their brand on U.S. soil. It involves securing so-called passive NIL deals – such as their image appearing on a billboard – in which they do not perform a service in return for compensation.

Nevertheless, we’re 29 months into the NIL Era and a thicket of issues still remain for international athletes in the NIL space. To date, there doesn’t appear to be the political will for Congress to pass legislation that would allow international athletes to partake in NIL deals in the U.S.

In March, Sens. Chris Murphy (D-Conn.) and Richard Blumenthal (D-Conn.) urged DHS in writing to help international college athletes exercise the same rights to their NIL as their non-international teammates without fear of losing their lawful status as students at American colleges. In a letter to DHS Secretary Alejandro Mayorkas, Murphy and Blumenthal pushed DHS to issue updated student visa guidance and regulations that would allow international athletes to partake in NIL deals in the U.S.

Then in July, Murphy and Rep. Lori Trahan (D-Mass.) relaunched their legislation to help student-athletes in NIL endeavors. The bill, called The College Athlete Economic Freedom Act, includes provisions to allow international athletes to engage in NIL activity without losing their student visa status.

Specifically, the bill would allow international college athletes “to market their NIL in the same ways their non-immigrant peers can without losing their F-1 visa status, including in the case that athletes become employees of their schools and/or athletic associations.”

International athletes are ‘unintended victims’ in NIL

Maiorova was among the team of attorneys who drafted the language in the bill on international college athletes. Thus far, she said, “as you know, that has gone exactly nowhere so far.” There has been no notable movement on the handful of NIL-related bills that have been introduced in recent months.

And so the uphill climb for international athletes remains. Maiorova calls them “unintended victims” in the NIL world.

“We’re facing largely the same issues that we’ve been facing when all this began,” Maiorova said. “We’re getting a little bit more clarity as sort of the brain trust of attorneys that works on these issues comes together and figures out ways that we might be able to make it work for some athletes. But from a rules perspective, a government policy perspective, absolutely nothing has changed … 

“The ethos behind the NIL regulations in general is sort of equal access, right? It’s fairness to quality. And the international student-athletes are now just being treated as second-class sort of citizens. They’re just simply unable, legally, to take advantage of NIL on par with their U.S. counterparts. And there’s no solution for it that is universally applicable. I hope that changes. But it hasn’t yet.”