One week ago today, college athletes gained the right to license their names, images, and likenesses free from NCAA interference. Yet, for a limited number of college athletes — those currently in the United States on student visas — their ability to profit off NIL remains in limbo.
For college athletes who are currently in the United States on student visas, there are limits imposed by their visas on their permissible forms of “employment.” To date, the U.S. Department of Homeland Security has not issued any advice on whether signing some, if not all, types of endorsement deals would constitute “employment” that runs afoul to their visa requirements. And, thus, some of these athletes are scurrying to gain legal advice on the issue from both immigration lawyers and college advisors.
Most college advisors of NCAA member colleges, not surprisingly, have taken the position that their foreign students on work visas simply must avoid taking any NIL money whatsoever. On the one hand, this view is understandable because college advisors have a responsibility not only to the college athletes themselves, but also to the college that employs them. Colleges gain little from athletes endorsing products. Meanwhile, they stand to lose a lot if one of their star athletes were to be deported.
On the other hand, some college advisors may be making recommendations with far broader strokes than necessary. According to Allan Wernick, who is a professor of immigration law at Baruch College and serves as the Director of CUNY Citizenship Now, “[a]ny activity in exchange for dollars is risky pending clarification from [the Department of Homeland Security].” Nevertheless, simply being paid for the use of one’s likeness as an avatar in a videogame should not be a problem because licensing the rights to one’s likeness involves “being paid for … NIL [and] not an activity.”
Under Wernick’s take, it reasonably might be permissible for even a foreign college athletes to accept cash payment from Electronic Arts in exchange for having their avatar appear in a potential new version of the NCAA Football. An agreement to have a college athletes’ picture appear on a Wheaties box similarly might be okay as long as the agreement does not impose any obligation on the foreign athlete to appear in a commercial, tweet favorably about the product, or take any other action that requires time or effort.
Nevertheless, college advisors at NCAA member schools are still telling their foreign-born athletes to wait on all endorsement deals rather than attempt to decipher from within the gray. Thus, for now, foreign college athletes such as University of Nebraska football player Nouredin Nouili — a highly recruited offensive tackle who is in the U.S. on a student visa from Germany — remains in limbo as to whether he can supplement his income in a manner similar to most of his teammates.
For some foreign athletes, this limbo remains a source of great frustration. Nevertheless, these foreign athletes are presently in no worse of a financial position than the one that college athletes had faced for most of the NCAA’s history — until states such as California affirmatively mandated steps toward economic reform.
Marc Edelman ([email protected]) is a Professor of Law at Baruch College’s Zicklin School of Business, Sports Ethics Director of the Robert Zicklin Center on Corporate Integrity, and the founder of Edelman Law. He is the author of “A Short Treatise on Amateurism and Antitrust Law” and “The NCAA, Fair Pay to Play, Antitrust Scrutiny and the Need for Institutional Reform.”