I’m joined this episode by Rob Seiger, a partner in Archer & Greiner P.C.’s Sports Law Group, to talk about the issues facing international student athletes when it comes to taking advantage of new name, image and likeness rights.
Rob represents college and university athletic departments in immigration and related compliance issues for their foreign athletes. So, we chatted about the advice he’s currently giving to his clients when it comes to international student athletes and NIL.
In this episode, we discussed:
- Current rules for international student athletes on student visas
- Is there a difference for international student athletes between getting paid $50 for an Instagram post and getting free food from a local BBQ restaurant for your entire offensive line?
- Gifts vs. compensation
- What we can learn from the issues the NHL faced with visas for international athletes
- How and when the federal government might provide guidance for international student athletes re: NIL
- His advice for international student athletes right now
- How things would change for international student athletes if student athletes were considered employees
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We’ve edited the full transcript below to focus on the highlights from the podcast.
Yeah, as I said to you before we started recording, this is one of those subjects where I always joke that I know just enough to be dangerous. So I’m excited to dive into this because I think that the question of where international students sort of fit into this new NIL landscape is something everybody’s asking. In fact, I was just on a panel last week at the NACDA convention with a lot of compliance folks from DII and FCS (programs), and right now, I think most athletic departments are just sending international student athletes to the financial aid office or to their on campus offices for international relations and saying, “Look, we don’t know, you have to go talk to somebody else.”
So, maybe you can give us a little background first, for those who aren’t familiar with what the rules are for the student athletes who are here on international visas in terms of their ability or inability as it may be to make money while they are here in the US for their studies.
The rules for international student athletes on student visas
First of all, that was a great introduction to the topic because it sort of puts us right where we need to be, and it really is coming at not so much what you know, it really boils down to what does the federal government ultimately think. What’s interesting about sort of federal immigration law in generalities, we’re fortunate that it’s a quantified space, meaning most foreign nationals who come over here, whether it’s just to come see New York or to accept a job being transferred from somewhere abroad, they all need what we colloquially call visa in the lexicon of the immigration regulations we have a defined space, starting with a visa for those who are coming for reporters so to speak, and all the way down to like, one of my favorite visas is called an S-visa, which means you’re coming over here as a snitch to testify in a federal criminal trial. I just think that’s great. That’s a fun one.
So in the middle there is a visa called F-visa. That’s the landscape we’re talking about. What is the F visa? What is it meant for? How does it work? And the optics from the government standpoint, is that if someone’s coming from abroad to attend my alma mater, from the government’s perspective, what’s the primary thought in their mind of that person coming over? Participating in the sport, you know, that can be sort of a secondary activity, but from the government side is, “This person is coming over here to study. And so to get into the regulations on the F visa, it’s pretty tight in that regard.
What type of “work” you can do on a student visa
When it comes to what the government allows, in terms of allowing foreign students to “work.” it’s actually very limited.
When I say limited, it’s generally limited to on campus, a foreign student can work or generally speaking on campus for 20 hours a week.
So like a job in the bookstore or the dining halls?
Yeah, it’s like taking a job so that you know, when the dining halls are closed in the weekend, you can you can actually eat because your food Hall is closed. So it’s very limited because what the government want to ensure is that foreign students are here to study and that’s the real complication comes with NIL is the opportunity for these foreign athletes to be able to be paid and receive money to attend a convention or sign autographs and get paid to show up at a booster clubs BBQ.
These are all activities that are for compensation and fly in the face of the students can’t be employed in the United States rules. So I guess that leads to the logical sort of question on the immigration side is “What is the potential impact of that for the stakeholders in terms of if they are accepting NIL and the government ultimately comes down that’s a bridge too far, that’s real compensation. If they went and worked off campus that could potentially put what’s called their visa classification in jeopardy, the government could be like “Whoa, you’re a visa violator, we understand you’re accepting conference compensation, and they wouldn’t be able to come back.” So if you look at how colleges and universities are recruiting foreign athletes, we’re seeing there’s always been a lane where they’re drawing in foreign student athletes to help these teams get better.
So essentially, if the foreign group can’t accept NIL you’re creating two problems: They can’t be paid, and ultimately, are these students going to be like, “Look, I can go anywhere else in the world, if my teammate is able to get a shoe deal, and I can’t, why would I go play that?
Is there a difference between free food and cash compensation?
Right. But we’re starting to see now whole teams or pieces of teams get a deal, like off the top of my head, I know Wisconsin’s entire offensive line signed a deal with a barbecue restaurant, Notre Dame’s offensive line signed with a pizza restaurant, and we know that the entire Miami football team has been offered a deal that they can opt into. Let’s say you’re on the Wisconsin offensive line, and you’re an international student, if the whole rest of the offensive line is eating at this barbecue restaurant every Thursday, as sort of a bonding ritual before the game that week, would you advise that international student athlete to essentially stay home or they have to make sure they pay some sort of fair market value for the food they eat while they’re there? That to me is a more complicated situation, than telling somebody “No, I can’t take $100 for your Instagram post.”
Yeah, and that’s actually an awesome analogy because it frames the issue correctly. The big gray area is obviously all of us lawyers like to play in that space is what is going to trigger the immigration guys to say, “Well, this is compensation.” I’m a little bit of an academic in the immigration space, I like to sort of grab on and see what other folks are, coming down on these issues, and I do know that some of this analysis as to NIL and how it relates to whether that would be truly be compensation under the regulations defining F-visas. I think some academics are starting to split it a little bit and saying, Well, if you’re not getting getting paid a check, I’m making this making this up but showing up at the restaurant and doing something and then they cut you a check and hand it to you for that that’s that’s clearly compensation. But sitting in a restaurant with your teammates, eating a meal every Thursday as a team bonding event is the government going to come down and say “That’s the same thing as getting a check.”
We ultimately don’t know, and I know some academics are saying “Well, that can be analyzed similar to if you just come over from France as an executive comes to the United States to meet with your company and your company takes you out to dinner.” We know that when you’re here as a tourist on a B-visa, you can’t be paid any form of compensation. So it’s sort of the same sort of line, right? Well, does that dinner count the same way if they pay you excessive per diems to go out and buy your own dinner? So that’s sort of where the issue from what compensation means from immigrations perspective in totality, and then sort of plugging it in to how this is ultimately going to apply for all the different scenarios that are coming out and will come out as NIL continues to evolve.
Impermissible benefits and student visas
Has the federal government ever handed down any sort of guidance or opinion when it comes to impermissible benefits and college athletics? Is there any guidance on the type of gifts I guess you can receive while you’re here (in America)?
I’m very lucky because most of the immigration I do is in the sports and entertainment space. So I get to talk about this area of law through representing clients in the NHL and all these places. So it’s kind of the fun immigration.
So the answer to your question is yes, the government issues policy and guidance all the time. The analysis on the B-visa that I gave you was pulled from a policy memo years and years ago where they talked about this concept called incidental expenses. So if you’re that executive coming over, you can be compensated for those incidental expenses like meals and what have you, but where you start to say, “Well, I’m going to come over here, and essentially do a piece of your job.” That’s when the government puts the period after the stop, like you just can’t, do that.
So let’s pull that back, and talk about what’s the next logical step in this. Because you said it correctly, and we’re essentially saying, “Right now, the guidance can go from don’t accept NIL, or if we’re going to say to the students look, you know, this is a little bit out of our hands, and you’re going to accept NIL, at least go out and get independent guidance, and make sure you’re not stepping on your visa status.”
The NHL visa example
So the ultimate resolution of this will be the government has to take notice and then take action. So what I was asked about this a couple of weeks ago from a client, “Like what do you mean when we say the government has to take action”? I analyze it way back in 2007-2008 when there was a real problem with the National Hockey League, and you may remember this where there’s a visa that’s reserved for professional athletes called P-1, and back then P-1 visas were capped at 10 years, which meant regardless of, you know, if you’ve been playing in the league for 10 years, if you’re still around, year 11 and 12, well, you have to go because you can’t stay any longer.
And so as equipment got better, contracts got longer, careers got longer, what was happening in the NHL back then was there was a block where the teams were out of luck, they were losing players. So long story short, all the stakeholders, all the member teams got together and formed an advocacy group, and they went to Washington and said, “We’re losing tons of revenue because now our MVPs are having to go home, we can’t sustain it.” So what ultimately happened was that through that advocacy with the government in D.C. now there’s no longer a 10-year cap on the piece, which is amazing because through that experience, the government moved and changed the law. So a lot of this sort of thought process now is if NIL continues to expand, the challenge is whatever they do for the foreign athletes will ultimately apply to the foreign student.
So some ideas that people have been talking about is do we create a policy memo related to NIL and say, Well, you know, the barbecue dinners, where you sit with your teammates is acceptable, getting a check for some swag is not. Or do they go in there and say, “Okay, let’s make a broader change at the regulatory level, and expand the 20 hours to while there was a monetized cap, or just sort of expanding the landscape of what’s acceptable for students to be compensated.”
The other challenge that I see with the NIL is that continuing to change the idea of amateurism? Now we have the foreign nationals, athletes also coming over here, bridging their career from playing soccer in their foreign country, coming into a U.S. university to join the soccer team to kind of start to get paid, and then be recruited to the MLS. So it’s, it’s an incredibly cool yet complicated analysis that I think that the government’s going to ultimately have to act upon.
What is safe for international student athletes to do with NIL right now?
At this sort of stage of the game when we’re talking about something like the offensive all eating at the same barbecue restaurant every week and the the owner of this restaurant, you know, as comping the meal for the whole offensive line, which is something that previously would have been against NCAA rules, but is now allowed. What would your advice be to a student athlete on that team now? Is it safest to just stay away from that and wait for guidance to be issued?
Yeah, and this landscape is changing because we just have a newly seated administration that has not been in place a year yet. I will tell you, and it’s not a political statement, it’s just reality. The last four plus years in the immigration space has been very harsh, outside of limiting the ability of foreign nationals to come in regardless of what they’re doing here.
So it’s been a very tightly regulated space which contrasts years past where if you tangentially met the regulatory requirements, you’d get the visa, that changed for a long time. Funny, we’re talking about this today, because residually there’s still a lot of hurdles to get people here. So from the policy side, if a foreign national player was sitting at my desk, I’d say, look, at this moment, you don’t want to be the test case, right?
But the point being is you don’t want to be that test case right now without any policy guidance where the government goes, “What you were doing was too much, and so we’re gonna take dramatic impact on you as sort of a deterrent.”
So the answer to the question you asked about the barbecue restaurant, if I were advising the athletic director or the head coach of that team, I say, “Is it gonna hurt these couple guys to sit this one out”? Because the risk in this regard is not better than reward or whatever the acronym is there. So maybe until the government weighs in on it, we just need to be a little more cautious about it.
Now, the devil’s advocate, advisor would say something like “How are they ever going to figure out that this kid is getting a meal”? “How can we say that’s compensation”?
But is it worth it for that? I would say, until we get some guidance from the government, let’s wait, and that was where I wanted to sort of take it was “Yes, the government’s aware of it.” There’s a system called service, which is an electronic system where every foreign national student in the United States is plugged in. So if you come into play for Princeton, the foreign student office there takes your visa forms and plugs into this electronic system, and there’s these various sort of check-ins that have to happen because we don’t in a post 9/11 world, we don’t want foreign students just kind of coming here and absorbing into the system without any any monitoring is yet.
So the government communicates to all these universities through this electronic system, and they’ve already weighed in and said that they’re aware of the issue as to NIL with the foreign students, but for the moment, they haven’t weighed in on where they’re going with this, but they’re “Heads up on it,” which says to me, if they’re taking the time to communicate it to the stakeholders, that eventually they’re going to have to pop up and provide some guidance.
Education-related benefits for international student athletes
What we’ve seen over the past decade that I’ve been covering college sports are changes to all the benefits that the athletic department is providing to student athletes, and we went to unlimited meals and snacks and that kind of thing to cost of attendance stipends, like there have been all these ways in which the traditional tuition room and board has been enhanced. Are those things that the federal government has weighed in on in the past or are those just considered educational sort of benefits? Has that ever been an issue for international student athletes?
Yeah, I think it’s at the current time, it’s the ladder. It’s sort of more of the going back to the concept of the incidental expenses as that these are kind of the cost of being at the school so to speak, but I think the games, you know, one comment that was said to me, which I actually as a practitioner don’t agree with is that “Well NIL, are you really paying them to do anything”? “Are you just paying them because of who they are”? So let’s take a sport like Esports.
So these players in Esports, they all have a name, but they’re ultimately known by their screen name. So Paying that player for their screen name, paying for that likeness of that screen name, is that really going to be considered compensation?
I’ve heard the argument that it’s not, You have a good, good face we want to pay for. So that’s what we’re doing, we’re not paying you to do anything, I think that would not fly at the government level because they’re just there, they would argue that that’s just sort of hiding the ball and you’re paying this person a check, and so that’s that we think that would be compensation.
I really am excited about this because I think it’s ultimately going to require a change at the regulatory level. Now that we’re seeing, as you said, the different machinations that NIL is taking, at least some sort of policy guidance is going to have to be issued so that we can unclog the system of doubt so to speak.
Would student athletes becoming employees be better or worse for international student athletes?
I’m wondering now that we’re having this conversation, if there were to be a change in the future where student athletes did become employees, is that actually worse or better for international student athletes?
It’s like the perfect bridge. The idea is, if you’re now paying players, you’re really changing the classification of how they’re seen inside those universities and colleges, they’re essentially saying we are employees of the school. So what does that do from the immigration side? That blows them out of the student visa because there are plenty of visa classifications for employees. So it enhances the seriousness of the issue because if you’re now paying them, you’re giving credence to the government’s position that these particular class of students, they’re not really in the F-visa, they should be in some other class of visa that allows for employment because they’re getting paid.
So the way you framed it is exactly how I think it’s gonna fall out because paying athletes who are here to study changes their visa class.
It’s such an interesting exercise to sort of think about because I remember when I first started writing and reporting on the Business of College Sports was about 11 years ago. I remember back then it would have been ludicrous to think that student athletes were ever going to be where we’re at right now, able to monetize their name image and likeness because there was so much opposition to it back then.
And I would have never back then been able to picture what today would be like, and we’ve already seen this challenge by the Northwestern student athletes that ultimately didn’t go anywhere, but I think that that will pop up again, around unionization, especially for group licensing, although we’ve seen other avenues for group licensing happen already in NIL, and I am always trying to think like, you know, 3 to 5-10 years down the road, where are we at with this at that point?
Even while we’ve been recording this, I’m taking notes on my phone, so I keep seeing tweets pop up, and like, one of the tweets I’ve seen pop up while I’m sitting here taking notes to myself is about the NCAA meeting to decentralize some of its power.
But I now can imagine a world where that might actually happen one day (student athletes becoming employees), so it’s interesting to think about it in this context of how it changes things for international student athletes who quite frankly, I don’t write a report about their sort of struggles or different situations very often. So it’s interesting for me to think about it a little bit.
Yeah, I agree with you. I think the NCAA is a little bit on the run right now, and I think that we’re just getting into how this is ultimately going to change this whole landscape. Now, because I’ve had these discussions with the schools that I’m working with, they’re deeply concerned about this issue, but there are a lot of colleges and universities that heavily rely on their ability to bring foreign students over because one of the sort of things buried in the regulatory way that students get here is foreign students get here is that essentially they have to be able to show that they can financially support themselves on this visa.
So to say it another way, a lot of these colleges and universities count on that money. So if NIL becomes an issue, if you push this out to the point where now foreign students are like, “I’m not coming to play in America. I can go play in Dublin and do the same thing I need to do.” There’s a financial piece that can directly affect the universities as well.
When can we expect guidance from the federal government on international student athletes?
Now, I’m sort of thinking, when do we get better guidance on this? We keep talking about when the federal government does something everybody sort of envisions that the federal government will pass some sort of law next with more guidance around NIL. I’m still not convinced that they’re going to, but I think it’s moving in that direction.
Do you think international student athletes have to wait that long or do you think there will maybe be some guidance that’s put out before that’s more specific to their issues?
Yeah, but I think you’ve kind of highlighted, the government moves on the slower side unless something makes them move. Like I had mentioned a few moments ago, the P-visa issue was that that was around for a bunch of years until the government finally said, “Alright, we’ve gotten enough complaints from the NHL, we need to sort of address it.”
Now, the world’s different, just the fact that you and I are having a great phone conversation, and yet, you’re still getting tweets about other things coming across the wire, that’s how the world is now. So every issue that’s out there is ultimately faster and more prolific because more people have the information faster.
So I think that the government will move a little quicker on this one because there’s just so many issues involved, and we’ve talked about them a lot, in terms of this group of stakeholders, “Can we let them (the athletes) stay in this F-visa status? Or if we’re going to go hardline, or is that going to change them? And if they take on NIL, they’re going to be employees? So I think once the pot starts to boil a little bit, I think they’re going to have to move on this. Is it going to be next year? I am doubtful on that. But is it going to be, you know, five years? I’m also doubtful on that.
What has to happen for things to change for international student athletes?
Yeah. I wonder if on the student athlete or on the international student athletes side of it, if it’s going to take essentially like a poster child. If it’s going to take an international student athlete who gets offered a big deal, we’re not talking a free barbecue dinner or 50 bucks to put a post on Instagram, but somebody who is high profile enough to warrant a sizable offer who then has to turn it down and goes to the media to tell their story about why they can’t take it because they’re an international student athlete.
I wonder if that’s what has to happen before it matters. Because, you know, I think that sometimes we forget how many international student athletes there are because they’re not always in the biggest sports with the biggest media exposure. So I wonder if it’s gonna take having that sort of poster child example to get some movement on this.
I think you’re ultimately right. I’m also aware that some of these leagues are trying to be a little proactive about it, and trying to talk to each other and say, “Hey, we are more powerful if we go in unified?” And trying to get, you know, get that meeting with the government saying, look, let’s talk about this because, if you take immigration just as a concept, it’s something that we just don’t think about, until there’s an impact. Either you read about it, or if you know someone that that was adversely affected you say, Wow, I didn’t realize that you could get yourself that sideways because these regulations and laws are so not complicated, but they’re detailed. So I think as the evolution of NIL, it’s pushing the issue a little bit forward.
Is there anything we haven’t hit on that you think is important around this subject? We have a lot of listeners who work inside college athletic departments who are trying to figure out how to handle their student athletes who are in this situation. Is there anything we didn’t talk about that you think they need to know?
Advice for universities and athletic departments with regards to international student athletes and NIL
Yeah, and first of all, I appreciate your time. I appreciate this conversation because I think you really did frame it and we weaved in all the issues that are sort of on the front burner. And in a similar way, as I have been advising the colleges and universities that I personally work with, when I’m sitting whether it was with the athletic directors who have an interest or foreign student offices or the compliance office and they asked this very state of question, “What do we do with our populace of foreigners, foreign athletes? Do we allow them to take NIL?
And my stated answer at this moment is we really shouldn’t. If we’re a university, we really shouldn’t clear it and say green light go for this class of athletes. Because again, you don’t want to be the university that said, “Hey, we cleared all these folks to take NIL,” and the government comes back and says, “Well, now you’ve lost your swimming team because they’re all in violation of their visa class.”
To proceed with caution is like the worst answer ever, but in this case because you know you’re essentially representing the university, understanding conceptually that foreign students cannot be paid or otherwise received compensation outside of very limited 20 hours it’s not advisable to let them go. Like what we were saying is like, alternatively, advised the foreign student athletes that, you know, the law doesn’t seem to line up on this. We’re advising you that we don’t think that you should step in this pool yet. We do think that guidance is coming down the road, but if you don’t want to be in that space with us and you think you’re losing opportunities, at least be aware that there are potential consequences that you need to vet out before you proceed, if that helps.
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