In 2021, the NCAA — the governing body of collegiate athletics — adopted a landmark policy allowing student-athletes to benefit financially from their name, image, and likeness (NIL). This historic move marks a sea change for college athletes. For the first time, players can profit off their success at the collegiate level through endorsement deals, appearances, social media engagement, and more.
However there’s a problem — a flag on the play — for international students. The Biden administration has offered no guidance on how it will interpret the rule as it applies to foreign student-athletes, who don’t know whether the restrictions placed on them as holders of student visas allow them to legally benefit from the change. Without guidance from immigration agencies, players could run afoul of their immigration status, resulting in catastrophic consequences for them — and a blow to their teams.
The Biden administration should issue new guidance clarifying how immigration officials will interpret the NCAA’s rule to avoid any catastrophic immigration consequences for players. With more than 20,000 international student-athletes, any further delay from the federal government amounts to a red card from this administration.
ESPN reports that international student-athletes increased from 9.8 percent of players in 2014 to 12.4 percent in 2019. That includes 60 percent of tennis players, more than one-third of men’s soccer players, and a third of women golfers at the Division 1 level.
International student-athletes typically receive an F-1 visa to enter the United States, enroll in higher education, and play for universities and colleges teams. But the F-1 visa imposes strict rules: visa holders are only allowed to work on-campus jobs for up to 20 hours per week and are barred from all off-campus jobs in their first year.
Even after the first year, they are only allowed to do practical training related to their study, like a paid internship. While exceptions do exist for students with severe economic hardships, most F-1 visa holders are constrained by these restrictions.
Therefore it seems likely that an international student-athlete getting paid to advertise for an apparel brand would be outside the bounds of the rules that govern student visas. Still, it’s impossible to know this for certain since the federal government has resisted providing an answer for eight months.
Last June, the Student and Exchange Visitor Program — which manages student enrollment for the Department of Homeland Security — announced they were “aware of and actively monitoring” NIL legislation and would provide updated guidance. But we’re still waiting.
In the absence of clear guidance — and given the obvious, overwhelming interest of international students — theories for how international student-athletes can cash in like their domestic counterparts have emerged. But these potential loopholes can come with enormous risk.
For example, the Associated Press reports that one industry insider claims student-athletes from Canada traveled back to their home country to post on social media and get paid, avoiding NIL engagement in the U.S. If this is a violation, the consequences aren’t a mere five minutes in the penalty box — it could mean deportation. Even if a player wants to take that risk, businesses most likely would prefer to work with Americans and avoid the reputational risk of getting someone in trouble with the authorities.
Complex rules, no clear guidance, and potential for life-altering fallout mean most international student-athletes have decided to avoid profiting off their NIL. The NCAA’s groundbreaking new NIL policy therefore only benefits domestic players.
Every month that the Biden administration fails to clarify the rules results in more international students barred from opportunities, delaying their ability to expand their brands and enter the market on pace with their domestic teammates.
Notably, the U.S. is also distinct in imposing these restrictions. Work regulations for international students are tighter in the U.S. than in most other major educational destinations. In countries such as Australia, Canada, Germany, or the U.K., most international students are allowed to work off-campus part-time during the academic year.
Though the F-1 visa’s primary purpose is education — not employment — there is little rationale for a policy that doesn’t strike a better balance for students who want to learn and work during the academic year like their American peers. These work restrictions don’t just impact athletes, they have implications for international students driving for Uber, opening an Etsy store, or taking a few shifts at the local bar to earn extra cash.
Last year’s men’s college basketball final was watched by 17 million people, creating an extraordinary opportunity for some of the nation’s most talented student-athletes to showcase themselves to the world. The business opportunities that can emerge from such a stage are enormous, but the NIL rule isn’t just for the nation’s best teams. The NIL rule can provide a sizable income gain to the student-athletes at mid-level athletic programs that aren’t prominently featured on ESPN but have notoriety in or around their college town.
As March Madness kicks off this month, it’s time for the Biden administration to pick a team: either issue guidance allowing F-1 holders to benefit from NIL or announce they can’t. The murky rules surrounding this quasi-NIL regime are detrimental in more ways than one. After all, athletes can’t compete when they don’t know the rules of the game.