"Not Even Invited To The Table"--International Athletes and NIL
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Today, I'm happy to share a freelance story from longtime Extra Points contributor Katie Lever.
I've written a lot about NIL over the last few weeks, and I'm sure I'll continue to do so. I've written about what athletes ought to consider when preparing to enter the market, how schools might be able to help them, about what I learned from doing NIL myself, and more. But not every college athlete even has access to the NIL marketplace. Thanks to ambiguity in US immigration law, international college athletes are being told that participating in NIL deals could threaten their visas.
But this is about more than just not being able to sell a few Instagram ads. Katie argues it speaks to a larger sense of alienation for one of the largest subgroups of all college athletes.
Let me pass the mic to her:
Like most college athletes, Raquel Montalvo went to college to excel in her sport and earn her degree. However, unlike most college athletes, Montalvo was also escaping what she describes as a potential civil war in the process.
“I am from Bolivia,” she told me, “politically, we are on the whole...next to Venezuela, a little bit closer. Many, many things just keep happening.”
Montalvo, who played tennis at Eastern Kentucky University from 2015-2018, now works at Gonzaga University as a graduate intern in Student-Athlete Life Development. She loves her job and is passionate about her work. As a former Student Athlete Advisory Committee member, she has always been well aware of the injustices within college sports and more specifically, issues that affect international athletes such as herself, like culture shock, a lack of diversity in SAAC, and international athletes being somewhat of an afterthought in the college sports reform process.
But in order to advance professionally, she was presented with an impossible situation as a college athlete due to the political climate in her home country. In her words: “if you have the choice between, you know, staying in the United States, kind of being quiet and accepting what these universities are giving you or, you know, getting sent back to that situation, that’s not much of a choice.”
Often unheard and brushed aside, international athletes don’t have much of a voice in the NCAA, in spite of the fact that, according to Montalvo, they make up the third-largest population of college athletes behind white and African American athletes.
“I just feel left out,” Montalvo told me. “I feel like the third, and nobody thinks about the third. And the third is a big chunk.”
Nowhere is Montalvo’s sentiment more accurate than in the name, image, and likeness conversation. New NIL rules have been in effect since the beginning of July and many college athletes have already taken advantage of their newfound freedom to monetize their NILs, with the media following their every step.
On June 30th, SportsCenter’s official Twitter account tweeted an image of a blacked-out football video game cover with the caption “With every NCAA athlete in the country able to make money from endorsements, who should grace the cover if the game comes back?”
Ancia Ifill, a former international athlete from Barbados who now works as the Associate Director for academic services at the University of Louisville, quickly corrected them with a retweet: “Every *domestic NCAA student-athlete.”
Ifill’s reasoning here is sound. According to the U.S. Citizenship and Immigration Services website, international students who wish to study as a full-time student in the United States must apply for a F-1 visa. When granted, the F-1 visa allows international students to pursue education at an accredited program that culminates in some form of a degree, diploma, or certificate.
But there’s a catch: although international students, who are in F-1 visa status, are allowed to work in limited circumstances, there are still numerous restrictions around what types of labor they are allowed to perform and be compensated for. This is a reality that Timothy F. Bryson, a doctoral student at the University of Maryland, is well aware of, thanks to his work that focuses on the intersections of college athletics and higher education.
“The content of their [international students’] work employment during the undergraduate experience on an F-1 student visa must be tied to their field of study,” he told me. “If it is not, they can still work on campus in a direct service provider role to other students.”
This is why many believe that due to U.S. visa laws, international students, including about 20,000 international college athletes, are currently unable to monetize their NILs like other college athletes—not only must international students’ on-campus employment be tied to their field of study, but it must be authorized by their university, which usually happens as a result of an international students’ financial hardship, and they are only allowed to work part-time. Moreover, if they wish to work off-campus, they must apply for Optional Practical Training or Curricular Practical Training, both of which come with their own lengthy set of paperwork and requirements.
It’s complicated, to say the least.
The complexity of U.S. visa laws might explain why, leading up to July 1st, many were unaware of NIL restrictions for international athletes, including international athletes themselves. This was true of Nouredin Nouili, an offensive lineman for the University of Nebraska who is originally from Germany, and currently on an F-1 visa. Nouili was excited to take advantage of NIL opportunities...until he found out about these additional regulations.
“At first I didn't even know about it,” he says of his status within new NIL policies and laws. “I guess I assumed that, you know, they included international athletes as well.”
Unfortunately, current NIL policies and laws don’t, because immigration regulations are created at the federal, not state, level. And even though college athletes have always been allowed to pursue outside employment in areas unrelated to their NILs as long as they clear it with their athletic departments, employment can be hard to come by for all college athletes, regardless of immigration status.
“The problem is, especially for athletes is, we can't really work on campus either, because of the time,” said Nouili. “Personally, I have football basically from, say, 7:00 AM, to 12:00, then I'm supposed to have school from 12 to 4 and then after, football again from 4:00 to 6:00. And, you know, I could work from 7:00 to 2:00 AM. But then the next day I'm going to be dying doing workouts, or from practice or games.”
Nouili believes that many NIL opportunities would enable athletes to cash in without tying them down to the time and location demands of traditional on-campus work, which is especially important for all athletes, who need flexible schedules.
NIL opportunities, however, are different. Although college athletes can now earn money for appearances, autograph sessions, and hosting training clinics, other NIL opportunities can be pursued using only a smartphone, which cuts down on time and on-location demands. This is why Catherine Haight, an attorney who specializes in work visas, believes that some NIL ventures, including influencer activities, may not be legally considered “work,” and could be permissible under an F-1 visa.
“Just tweeting something, or even putting something on Instagram, probably isn't enough [to be considered labor],” she said. But she also acknowledges the legal gray area of online spaces. “If Pepsi is paying an athlete to hold up the Pepsi bottle with their name and image and likeness, is that services? Is that labor? Good question. On the other hand, if Pepsi just says, ‘Can we slap your name on [an advertisement]’ saying ‘you don't have to do anything, you don't have to come in, you're not going to get televised, nothing like that. We just want you to say that you love Pepsi.’ And the [athlete] says ‘sure use my name.’ There's no services provided. And so that's an issue that's going to have to be litigated and you can kind of argue on either side.”
This uncertainty keeps international athletes in the same pre-NIL world that college sports advocates have been pushing against for years, and changing this reality will likely require federal intervention.
After all, if an athlete runs afoul of the NCAA or local school regulations, the worst thing that could happen is they might lose their athletic eligibility. If an athlete runs afoul of US immigration authorities, it could mess up their ability to get a Green Card for years.
Because of this, Haight advises international athletes against monetizing their NILs, at least for now. Bryson believes this is a massive flaw of U.S. visa laws, given the potential benefits of NIL for all parties involved—after all, he says, international students have vast potential to stimulate the American economy and increased NIL rights could contribute to educational retention on college campuses.
“Right now I think the biggest frustration is not just the fact that, you know, people, collectively across the country are just now discussing [international athletes],” Bryson said, “but the fact that no one's talking about it from education standpoint because the fact that if international student athletes were trying to take advantage of their NIL, they’re at risk for deportation.”
Montalvo states that international athletes can potentially monetize their NILs if the labor involved is performed outside of the United States. But there are logistical problems to this approach. “You're not going to fly to your country to sign some shirts, and then come back for practice the next day,” she said. “That's one of the greatest barriers: okay you're giving me a solution. I can go to my country to do this but then I have to go back to practice, and I cannot miss practice.”
It might seem easy to sweep NIL issues under the rug for many college athletes because the majority of them, whether domestic or international, will likely not be signing seven-figure deals. But many of these athletes still have to pay for living expenses their scholarships don’t cover, a situation that Hawker, a former international athlete himself and a current athletics academic advisor at Old Dominion University, is acutely aware of even if he didn’t compete under the NCAA.
Hawker played rugby for Lindenwood University, and rugby is governed by USA Rugby, an association that has always allowed its athletes to monetize their NILs. But according to Hawker, USA Rugby’s athletes are predominantly international students, so it has always functioned as somewhat of a pre-NIL NCAA without as many guardrails...for better or worse.
“There's no protections on a number of values,” Hawker explains, “so we were really at the whim of our coaches. So, yeah, that was very tough.”
For example, Hawker’s coaches could call athletes on their personal phones at all times of the day, or schedule unlimited practice hours. USA Rugby didn't have the same bylaws or infrastructure to push school or academics the same way the NCAA did. And just like other college-athletes, Hawker was broke.
“The hardest times that I've had in America is because I hadn't legally been allowed to work,” Hawker explained, “and so, like living off ramen for months on end was very real. I can’t drive places because I can’t afford gas. And there was one weekend I had to buy chicken. I had to stretch out from Thursday to Monday, and that was when I was getting a stipend, so it's not pretty.”
Not only could NIL revenue benefit international athletes in these situations, in addition, Hawker stresses that international athletes do have the desire to monetize their NILs. Furthermore, because they have a more global audience, they also have a lot of market potential—even walk-on athletes like Nouredin Nouili.
“I'm not a big international student,” he said of his social media presence. “I have little bit of a following but there's people that have a lot more followers than I do.” But even in NIL’s infancy, Nouili has already had to turn down business from a local car dealership and personal grooming company, Manscaped, which is based out of Germany.
“I actually had to say no to them,” he said. “I was talking to them and they were like, ‘you know, we have a huge market in Germany,’ and I completely shut that contact down because like I'm not trying to risk my visa being taken away.”However, there are things that can be done to remedy this situation, although it will take some time.
Hawker believes that this process starts with awareness, and that such efforts should begin as quickly as possible.
“Being aware of the differences and start making a ruckus now,” he said when asked about how university employees can support international athletes. “Speak to the people who are in charge of governance and the NCAA to start moving on it. It's just one of those things that we need to start making movement on it now because it's just not going to be an overnight solution.”
If we’ve learned anything from the current college sports reform conversation, it’s that Hawker is correct—these efforts take time, and for international athletes, their reform efforts are still in the awareness stage. Last month, ESPN published an article interviewing university athletic employees about international athletes and NIL. Several stated that they had never considered international athletes in this context before. But Bryson believes that the colleges and the NCAA are the entities that should be the most informed and advocating the loudest for international athletes.
“The opportunity I think lies with the NCAA, and colleges, universities, lobbying to both Congress, the federal government, and also the state legislators,” he said. Haight agrees with this approach.
Montalvo also stresses that acknowledging the humanity of international athletes is paramount to serving their best interests, even outside of NIL.
Today, she’s invested in her athletics administration work because she is an emblem of the diversity she wanted to see as an athlete. Upon earning her master’s degree, Montalvo said that she had the opportunity to attend an Emerging Leadership Seminar, which the NCAA describes as a “professional development event that provides leadership, educational and transitional programming for current graduate assistants and interns from NCAA member schools, conference offices and affiliate organizations.” On paper, it sounds like an extremely beneficial event, but Montalvo highlights a key problem that reflects the overall makeup of collegiate athletics.
“Here's a room of 319 people,” she said of the conference, “and out of those 319, three or four that I knew were international students.”
Ancia Ifill echoes the importance of diversity, representation, and inclusion because there are issues that affect international athletes uniquely. She believes having more former international athletes in leadership positions could be beneficial to those who are going through hard times adjusting to a new country.
“That would be a big benefit,” she said of increased representation in hiring practices. “We’ve got to start bringing more people who actually can relate to international athletes, understand what they're going through, have been through what they’ve been through, and can give them insight.”
These are all viable solutions, but lopsided hiring practices and federal intervention aren’t problems that are solved overnight. Still, there are things athletics administrators can do in the meantime.
“The biggest piece of this is the education piece,” Ifill said, and that means including students, staff, faculty, and administrators in educational initiatives. “Because if none of us understand that, we can’t help our students. If we can't give them the answers that they need, then we're doing them a disservice. At the end of the day, we’re here to service all student athletes, not just the domestic ones.”
There are also resources athletic administrators can access to help educate themselves, and they may be easier to access than one may believe.
“In every single good university, there's an international students office,” Haight told me, “and there's someone called the designated student officer or school officer, DSO, who manages the program. That designated student officer is the one that issues the paperwork for a student to be able to get a visa to enter the United States.” So making a call across campus may be the only action an athletic director needs to make to find helpful information.
Another more obvious option is to talk to the international students themselves, and Montalvo believes that continued advocacy both from international athletes and on their behalf will help them in the future.
“Just keep advocating from your chair,” she advised. “And if many chairs get together, then we're going to be at that big table.”
Similarly, Bryson believes the answer is inclusion. “Include ISAs at the table,” he said with a pause, “and listen.”
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