Last Updated on July 29, 2023
Over the past couple of months, three federal NIL bills have been introduced and another draft for discussion circulated. One of those bills, the College Athlete Economic Freedom Act, is tackling the issue of international student athlete NIL.
The bill was reintroduced by Sen. Chris Murphy, D-Conn., and Rep. Lori Trahan, D-Mass, who previously introduced the bill in February 2021. The 2023 version, however, has added several new provisions to address issues that have become apparent as NIL has played out over the last two years.
International Student Athletes
The piece of this bill that caught my eye is a provision that would allow international college athletes to fully exploit their NIL without any violation of their F-1 student visa status.
Currently, international student athletes are extremely limited in what they can do with their NIL. Although they’re free to do NIL deals while in their home countries, any kind of “work” in the United States could violate the terms of their visa and result in it being revoked.
International athletes can engage in “passive” activities, such as licensing their NIL to a third party who does all the work. For example, they could license their NIL to a trading card company in exchange for a fee, and the company could create and promote the trading card. The athlete wouldn’t be able to promote this relationship at all, meaning they couldn’t even share their own trading card on social media to encourage sales, or the activity would no longer be passive.
There are also options for some athletes to pursue P-1 or O-1 visas instead of their F-1 student visa. You can read or listen to a more in-depth discussion on our interview with immigration attorneys Ksenia Maiorova and Amy Maldonado.
In addition to allowing international athletes to freely participate in NIL, the College Athlete Economic Freedom Act also protects international student athletes if college athletes are found to be employees.
Another notable provision in the bill would require universities and conferences to obtain a group license from athletes for using their NIL in any kind of promotion, including through their media rights deals. This could be a huge windfall for student athletes.
The bill also requires universities and conferences to notify athletes how their NIL was being used and the revenue generated by the deal so athletes would have the information necessary to negotiate for their share of the revenue.
California has already proposed a bill that would require revenue sharing with athletes in its state.
Other specifics from the College Athlete Economic Freedom Act include:
- An unrestricted right for college athletes and perspective athletes (which would presumably include high school athletes) to market their NIL without restriction. This would limit the NCAA, conferences or universities from putting any parameters on NIL deals.
- Athletes could not be prohibited from retaining representation from attorneys, agents, collectives, players associations or others.
- Collectives would be compelled to register with the Federal Trade Commission and report all NIL deals in order to ensure there is no discrimination based on gender, race or sport.
- The NCAA, conferences or universities could be penalized in a number of ways under this bill, including through per se antitrust penalties (meaning if you meet the criteria, you are found liable without consideration of specific circumstances), a private right of action for athletes to pursue civil claims, and the ability of the FTC to levy “unfair or deceptive practices” penalties.
I also have a comparison of this and two other federal NIL bills, plus a draft for discussion, that have been introduced.NILNIL collectiveNIL internationalNIL newsNIL rights