International Student-Athletes: Name, Image, and Likeness
By Kevin Bell, Partner
When the NCAA granted student-athletes the right to be compensated for the use of their name, image, and likeness (NIL), many student-athletes rejoiced for their new freedom and the potential of earning extra income. Several high-profile student-athletes signed NIL deals shortly after the NCAA’s announcement, allowing them to monetize their NIL immediately.
International student-athletes, however, must continue to wait for additional guidance before they can safely and assuredly take advantage of their NIL. These student-athletes work hard, and some are very talented in their chosen sport. Furthermore, some have large social media followings; however, at this time, they cannot sign NIL deals without potentially jeopardizing their educational endeavors.
Generally, international student-athletes are required to obtain a visa to enter the United States as a full-time student at an accredited university. Students with a student visa are generally limited, under the visa regulations, in the type and amount of employment for which they can be compensated. Visa holders that do not strictly follow the regulations are at risk of losing their visa among other potential consequences.
The issue is whether the Department of Homeland Security (DHS) will consider compensation for NIL arrangements as allowable employment under the current visa regulations. Unfortunately, DHS has not opined on this issue; however, on June 21, 2021, the Student Exchange Visitor Program (SEVP) issued the following statement:
“The SEVP is aware of and actively monitoring proposed federal and state legislation pertaining to the use of name, image and likeness for student athletes, including F and M nonimmigrant students. The program is working with its partners within the U.S. Department of Homeland Security to review how this legislation affects international student athletes and will provide updated guidance via Broadcast Messages, Study in the States, social media and SEVP field representatives.”
Until further guidance is provided by DHS, international student-athletes must proceed with extreme caution when considering NIL opportunities, no matter whether that be cash or in-kind compensation.
It is also important to note that immigration law and student visas are federal matters and must be addressed by DHS or by Congress and cannot by trumped by state legislation.
International student-athletes who desire employment opportunities, including NIL arrangements, should first contact their university’s office of international students, affairs, services, programs, or its equivalent. Additionally, they should be in communications with their compliance department on the athletics side.
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