Bipartisan legislation introduced to address international athlete NIL issues

A federal reform bill has been introduced in the House of Representatives that would modify F-1 student visas and allow employment authorization for international college athletes who enter into endorsement contracts for the commercial use of their NIL.

The bipartisan legislation, co-sponsored by Rep. Valerie Foushee (D-North Carolina) and Rep. Mike Flood (R-Nebraska), seeks to amend the Immigration and Nationality Act and address the significant challenges confronting an often overlooked subgroup during the nearly three-year-old NIL Era.

U.S. immigration regulations prohibit international students in the country 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 deals require an athlete to perform a service for compensation, which conflicts with immigration policy.

Athletes impacted recently, include basketball National Player of the Year Zach Edey and UConn women’s basketball star Aaliyah Edwards, both from Canada. Plus, former Kentucky star Oscar Tshiebwe – the Naismith Player of the Year in 2022 and a native of the Democratic Republic of the Congo – had to film NIL deals while on an international tour in the Bahamas.

Leaders proud to introduce NIL changes

“Since 2021, these athletes have been prohibited from profiting from name, image and likeness contracts in the same manner as their American counterparts,” Foushee said in a statement. “I’m proud to join Congressman Flood in introducing this bill that will modify F-1 visas to allow international student-athletes to profit from NIL agreements, without worrying about these agreements affecting their visa status.” 

Flood added in a statement: “International students already can pursue part-time employment during college. This legislation seeks to ensure that international collegiate athletes also have the opportunity to receive compensation in name, image and likeness promotions.

“Thank you to my colleague Rep. Foushee for co-leading this with me here in the House, and I look forward to working with her as well as Senators [Pete] Ricketts (R-Nebraska) and [Richard] Blumenthal (D-Connecticut) on passage of the Name, Image, and Likeness (NIL) for International Collegiate Athletes Act in the coming months.”

International athletes have narrow road to monetize brand

Immigration attorneys Ksenia Maiorova and Amy Maldonado co-authored a book titled NIL X Immigration. They 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 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.

After reviewing the text of the bipartisan bill, Maldonado told On3 on Tuesday, “We are encouraged by the fact that the bills are bipartisan in both houses of Congress, and thus have more potential to move forward than other NIL legislation introduced to date. Based on our own experience with DHS and USCIS, the bill is very open-ended, and the failure to define NIL in the bill creates the opportunity for DHS to promulgate regulations that may ultimately be inconsistent with the NCAA definition and industry practices.”

“We would also prefer the language of the bills state that employment is authorized incident to status to prevent severe agency delays in processing Employment Authorization Documents from affecting international student athletes.”

More leaders pushing for NIL reform

In March 2023, Sens. Chris Murphy (D-Conn.) and Blumenthal urged the U.S. Department of Homeland Security 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 allowing 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.”

Maiorova was among the team of attorneys who drafted the language in the Murphy-Trahan bill on international college athletes. She has told On3 that international college athletes are the “unintended victims” in the NIL world.