International Students Excluded from Collegiate NIL Deals

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What Are Name, Image, and Likeness Deals?

In 2021, the National College Athletic Association (NCAA) began allowing college athletes to engage in Name, Image, and Likeness (NIL) deals.  These deals allow the athletes to have a right of publicity and participate in transactions that promote products and services using their name, image, and likeness.  Examples of name, image, and likeness transactions include personal appearances, commercials, merchandise, ambassador roles, and podcasting.  Athletes can also use the right of publicity to prevent businesses and organizations from using their name, image, or likeness without their consent.  

In June 2021, the NCAA changed the history of collegiate sports when it began allowing NIL activity.  The NCAA was established in 1906, and from 1906 to 2021 collegiate athletes were not allowed to capitalize on their name, image, or likeness. NIL deals now provide each college athlete the opportunity to make thousands, if not millions of dollars throughout their college careers.  In 2024 alone, it is projected that college athletes will collectively make about $1.7 billion in NIL deals.  Armando Bacot, a former University of North Carolina basketball player, revealed that he made over two million dollars throughout his time playing at UNC.  University of Iowa women’s basketball star Caitlin Clark made an estimated three million dollars during her time playing collegiate basketball.  These high payouts show NIL deals have clearly transformed the landscape of college athletics.  

NCAA NIL Rule

The NCAA NIL policy contains three main provisions.  First, college athletes can be involved in NIL activities if they follow the state law regarding NIL deals where their school is located.  State laws in this area differ.  For example, on July 2, 2021, North Carolina Governor Roy Cooper signed Executive Order No. 223 which laid out specific rules for athletes who wanted to participate in NIL deals in North Carolina.  The Executive Order required: (1) North Carolina universities could not make NIL deals directly with students; (2) a NIL deal could not be used to directly induce a student to commit to a specific school or remain enrolled at a specific school; and (3) good athletic performance could not be a condition of a NIL deal. 

North Carolina operated under these state-specific rules, as well as the NCAA rules, from July 2021 to March 2024, until Governor Cooper rescinded the Executive Order to allow for more flexibility for both student-athletes and colleges in facilitating NIL deals.  The rescindment eliminated the aforementioned three main NIL deal rules.

The second provision of the NCAA NIL policy states that even if a student-athlete lives in a state with no state-specific NIL rules, the student can still participate in NIL activities.  In navigating the NIL landscape without an applicable guiding state law, student-athletes are to follow the NCAA’s NIL Interim Policy, which details the overarching rules regarding NIL transactions.  The interim policy includes guidance for athletes pertaining to their NIL eligibility when transitioning from high school to collegiate sports. 

Finally, the third provision of the NCAA NIL policy states that professional servicers are allowed to help athletes navigate the NIL space.  This means that athletes may have agents and other representatives, such as attorneys, aid them in the NIL deal process.  States may have their own additional laws regarding athlete representation.  For example, before Governor Cooper rescinded Executive Order No. 223, North Carolina had rules governing a student-athlete’s agent.  In North Carolina, an agent had to register with the North Carolina Department of the Secretary of State unless the agent fell within one of three exemptions: (1) the agent was the student-athlete’s spouse, parent, sibling, or guardian; (2) the agent was acting only on behalf of a professional sports team or organization; or (3) the agent was a licensed North Carolina attorney, who is a resident of North Carolina, represents a maximum of two student-athletes, and who does not advertise or claim to be qualified to represent student athletes.  

NIL Issues for International Student-Athletes- And a Potential Solution 

Although college athletes have the potential to secure impressive NIL deals, the opportunity is generally not given to international athletes.  However, Congress has proposed a bill that could allow international student-athletes to participate.  

There are about 25,000 international student-athletes in the NCAA, which makes up around five percent of all NCAA athletes.  This results in around $13.28 million in potential earnings losses for these athletes.  The issue for international students stems from the F-1 visas that are common for international student-athletes to receive when they come to the United States.  F-1 visas only allow for limited student-athlete employment, which includes on-campus employment for a maximum of twenty hours per week, or limited off-campus employment where the student faces severe economic hardship.  NIL deals do not fit in either of these categories, as the NIL deal process requires student-athletes to spend time working off-campus by traveling and securing deals with companies not associated with universities.  If an international student-athlete is caught violating the terms of the visa, potential consequences include termination of their student visa status, deportation, and the denial of future visas. 

To by-pass the F-1 visa requirements, the only viable option for international students looking to enter NIL deals is to complete the entire transaction in their home country.  The visa requirements currently prevent international students from receiving any NIL payments for activities in the United States.  Furthermore, international students cannot simply allow an American business to use their NIL for compensation without performing any work or activity, such as starring in a commercial, because that violates NCAA NIL rules.  Therefore, if an international student tried to carry out a NIL transaction entirely in their home country, the effects of the activity or work that the athlete completed would need to be confined to the home country. 

This clearly imposes strict limitations on international student athletes.  However, a bill has entered Congress that would aim to solve some of these issues and provide international athletes with more flexibility.  On April 15, 2024, Representatives Flood and Foushee introduced the Name, Image, and Likeness for International Collegiate Athletes Act.  The Act would amend the Immigration and Nationality Act to “provide F visas and employment authorization for international athletes who enter into endorsement contracts for the commercial use of their names, images, and likeness.”  For the time that the international students are athletes in the United States, this bill would allow the students to participate in NIL deals to the same extent American students can. 

Future of the Name, Image, and Likeness for International Collegiate Athletes Act Bill

The Name, Image, and Likeness for International Collegiate Athletes Act Bill has been referred to the House of Representatives’ Judiciary Committee.  The bill must be approved by committees in both the House and Senate.  If passed, the bill will be sent to a committee comprising both House of Representatives and Senate members to finalize the bill before ultimate approval.  Since the Name, Image, and Likeness for International Collegiate Athletes Act Bill is still under review in the Judiciary Committee, it could be years before the bill is passed, if at all.  International athletes may be waiting awhile, but it is clear that Congress has recognized the need for change in this area of law and American collegiate sports could see another NIL transformation in the near future.