Opinions on if and how international student athletes can take advantage of NIL have shifted from a pat answer that they can do nothing to talks of passive income opportunities and pursuits of O-1 visas.
In December 2022, our founder Kristi Dosh had a podcast discussion with attorneys Amy Maldonado and Ksenia Maiorova on how international students can navigate NIL. Both attorneys have successfully pursued P-1 and O-1 visas for international athletes, including Maldonado’s recent O-1 visa for Northwestern men’s basketball guard Hansel Enmanuel (listen to the podcast to hear how this happened).
During the course of the conversation, they discussed the different types of visas that may be available for international students and how current international student athletes have found ways to monetize their NIL without jeopardizing their visa. I’ve summarized some of that conversation below, but I encourage you to listen to the entire episode for more detail.
Types of Visas Available for International Student Athletes
For those who aren’t experts on immigration, here’s a breakdown of the different types of visas that came up in the podcast:
Student Visa (F-1): a student needs to be in work authorized status to be able to work and earn income. The work authorization that is available is often limited and typically tied to their program of study. For example, a student who is studying microbiology may be able to get work authorization to go work in a lab. There are two options: a training that a student can do while still in school or a postgraduate internship. In certain circumstances, a student can also get an emergency work authorization for paid on-campus employment, like working at the library.
Professional Athlete Visa (P-1): These visas require that an athlete have a contract with a major league sports team. The major sports team must be in a league sport, where you have combined revenues of $10 million and at least six teams.
Extraordinary Ability Visa (O-1): These visas are typically given to athletes who are at the top of their specific sport. Priority is given to those with extraordinary talent and can be easier for athletes in some sports over other sports (more on this below).
One other term that came up in the conversation was a Designated Service Officer or DSO. The DSO is a person at a university’s international student office who is responsible for helping students maintain their visa eligibility.
The ladies suggested that as a rule of thumb, if you do not have $10,000 worth of NIL deals, then it is probably not worth the legal fees and the visa fees to pursue a P-1 or O-1.
Passive Income Opportunities for International Student Athletes
One of the biggest issues that international students face with visas when it comes to NIL is determining whether the student athlete’s income-generating activity is active or passive.
There is a clear consensus within the immigration law community that most NIL activities are active instead of passive employment under the definition of immigration law. However, Maldonado and Maiorova weighed in on some situations where an athlete could probably successfully argue they were engaged in passive activities where they may safely receive compensation for their NIL.
The first example that was covered in the discussion had the following facts: an NFT company had a license to use an international student athlete’s NIL for an NFT. The company did all the marketing and promotion for the NFT, while the student athlete did nothing. In a situation like this where the athlete did nothing to promote or market the NFT (literally didn’t even verbally tell his/her friends about it), the ladies agreed it would be passive income.
Maldonado pointed out that she has advised clients that if they have a US work-authorized social media manager, that person can post on the international athlete’s social media without any issues. However—big caveat here—the international athlete can’t pose in the photo or put out scripted content, because that crosses the line and makes the activity no longer passive. However, Maiorova cautioned that when you get in front of a consular officer, you’d need to prove who pressed the button to post on social media, which she thinks would be difficult to prove.
Group licensing was also discussed, with the conclusion that group licensing deals are not necessarily passive. With this in mind, it is important to analyze every deal on its individual terms to determine what are the obligations of the individual athletes or the team athletes under that deal.
The second example discussed involved a company placing an existing image of an athlete on a tumbler or a t-shirt. The one thing to watch out for would be whether the college athlete is getting a percentage of the sales of that NFT, tumbler, or t-shirt. The main concern that the attorneys discussed with this example is ensuring that the college athlete understands that they cannot promote the item even though there is a monetary stake in this for them. To overcome this concern, the attorneys suggested making it very clear to the college athlete that they cannot even ask friends to buy their merchandise because that could convert this from a passive to an active activity and have a negative impact on their visa status.
Paying International Athletes Outside of the US for NIL Deals or Donating NIL Money to Charity
Some have wondered if they can skirt the law by having the athlete get paid outside of the US.
“I think it’s very clear under US immigration regulations that any services that are rendered in the US—regardless of whether they’re paid for inside the US or outside the US—if you are rendering services in the US that are typically subject to compensation, that is work, period.”
Maiorova mentioned a scenario she saw with a men’s basketball player who was donating his NIL proceeds to a charity. She says this doesn’t work either.
“In order to donate money, he has to have title to the money, and the moment he acquires title to the money—if it’s on the basis of him doing something—then we have a work authorization problem.”
Maiorova is also concerned about international athletes who are getting paid to do NIL deals while out of the country for a game, like perhaps in the Bahamas.
“Just because you’re not within the US immigration system doesn’t mean you can work without authorization in the Bahamas. They have their own immigration laws. They have their own employment authorization requirements. You can’t just assume because you’re admitted to go there on vacation you can do things that are revenue-generating activities.”
Maldonado says she looked up France’s laws on this recently, and they allow you to work remotely for a period of 90 days, for example. International athletes wanting to do NIL deals this way would need to look up the laws for each country to determine if it would be permissible.
Sport May Matter for International Student Athletes
There are certain sports that have been more successful in getting P-1 and O-1 visas depending on the setting. In individual sports, track and field, swimming, and gymnastics, have been more successful in getting visas. On the team side, college athletes who play baseball, football, and basketball, have been more successful in getting visas.
Weighing Risks for International Student Athletes
You have to know how much risk you are willing to take in the absence of guidance on these types of immigration issues. In addition, you have to account for the fact that there are going to be different opinions and positions, which could have serious implications for your student athlete. However, it is important to remember that there are things that are very clearly safe, unsafe, and then there are things that fall in between.
Maldonado says she advises her clients very conservatively, “because no one has an entitlement to a visa.”
“There is something called the doctrine of consular non-renewability. So, if you get a State Department officer who thinks you worked without authorization, and they don’t want to renew your student visa, they don’t have to, and there’s nothing you can do about it.”
Because there is no appeal process, Maldonado doesn’t think it’s worth it to take risks when it comes to activities that straddle the line between passive and active.
The ladies also pointed out the reality of who is going to be making the decisions. Consular officers are people who have signed up for the Foreign Service, and they’re each required to do a stint at a consulate. This means that these are not people who are necessarily passionate about being at a consulate. They have been given a two-week crash course and told to go adjudicate some cases.
To put this in perspective, the average time at the window is roughly 90 seconds. These officers don’t have time to pursue the nuance and figure out whether something is legal or not. Many times these decisions are based on a gut reaction: they like it or they don’t like it.
Any finding of ineligibility, or inconsistent intent and activity, can be grounds for denying future visa applications.
While this covers a lot of the conversation, we still recommend you watch the video or listen to the podcast for more examples and guidance.