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Revisiting NIL for International Student Athletes

Breaking down attempts by international student athletes to participate in NIL.

I’m joined this episode by Rob Seiger, a partner in Archer & Greiner P.C.’s Sports Law Group, who has joined us once before to talk about issues international student athletes have been trying to navigate in order to take advantage of the NCAA’s new name, image and likeness rules.   

Rob represents college and university athletic departments in immigration and related compliance issues for their foreign athletes.

If you didn’t hear our first episode, listen to it here. In this episode, we’re taking a look at a few specific instances where international student athletes have attempted to take advantage of NIL without violating the restrictions of their student visas. Are these situations good examples of how international student athletes can take advantage of NIL opportunities? Or, will we see the government make an example out of them for violating visa laws?

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Abridged Transcript

We’ve edited the full transcript below to focus on the highlights from the podcast.

Updates on international student athletes’ situation

Kristi Dosh

International student athletes have still received no real clarity on what they can and can’t do from an NIL perspective. Going into last July, every athletic department that I know of was telling international student athletes that it wasn’t safe for them to do name, image and likeness deals. They were referring the student athletes to the office on campus that deals with student visas. As this first school year of NIL has progressed, now we’ve seen some international student athletes who have been involved in name, image and likeness opportunities.

I promised our audience I would have you back on to see if your opinions have changed about what international student athletes can and can’t do and we can talk through some of the scenarios we’ve seen so far. So from your perspective, what is the situation for international student athletes right now?

Rob Seiger 

I appreciate that. I think, in summary, not much has really changed from the international student athletes’ side. That is a function mostly coming out of our government not providing us with any guidance, either from a policy memo out of the Department of Homeland Security or USCIS. There have been regulatory changes. So since we started NIL, the government’s position has been quite silent on it, only to say that they’re aware of the issue. I guess, some point down the road, they may or may not weigh in.

Possibilities for a non-US NIL deal

Kristi Dosh

Right after you and I spoke last time, I went and spoke on campus at Louisville. There was an international student, not a student athlete, who was in my session. She came up to me afterwards and said she had listened to our podcast, and she said: “I’ve got a scenario I want to know the answer to. I think I emailed you at the time and you told me what you thought.” Her scenario was that she was an international student from Germany and she wondered: Could an international student athlete who was from Germany, or any other country, do an NIL deal when they’re back home in Germany? She was asking: If a German international student athlete goes back to their home country for Christmas break, could they do a name, image and likeness deal with a German company while you were in Germany? Would that be okay?

Rob Seiger

Yeah, I think that would be okay. What we always do as immigration lawyers is differentiating what’s being done in the United States which are the things that our government gets concerned (having the right visa, having the right employment eligibility) and what folks are doing outside of the United States in their home country with no nexus to what could otherwise be seen as working in the US. So, strictly speaking, if someone were to go back to Germany, work with Porsche or BMW, do an NIL over there and be completely paid in their home country? I really don’t think our government would be concerned about that at all.

Elaboration on “passive” and “active” income-generating activities

Kristi Dosh

I thought we’d start off with a somewhat easy scenario. We’ve got student athletes who are going home this summer and might have opportunities in their home country while they’re there. I know that that question has come up quite a few times since then but I remember the first time I heard it was when I was at Louisville, talking to that student. So I would say the next step from that is a deal that I reported on Forbes recently, which you actually were kind enough to give me some feedback. I’ll link this down in the show notes for people.

There’s a Berkeley men’s basketball player who was announced as having signed a deal with an agency that essentially helps international student athletes wind up at US colleges for their sport. They had actually worked with him when he was a recruit. The agency felt like there was a good connection there already having already worked with him, like this was an authentic sort of partnership because they already had this existing relationship with him. They are based in the UK. They do have an office, I believe, in the US, but are based in the UK, he’s an Irish student athlete. The pitch that they sent me, which I then sent to you to get feedback, was that they felt like this deal was okay because they were going to pay him in his home country’s funds from a bank account over there into his bank account over there. They are a registered business there. I asked them what kind of activities he was going to be doing because I was thinking back to our example of him going to be at home and he was doing these things in Ireland over the summer so maybe that’s okay. They came back saying that he is going to be doing social media promotion, and, presumably, some of that social media promotion, he would actually be posting from the United States. He may be taking the pictures in the United States and then putting it on Instagram while he’s in the United States.

He hasn’t done any of this yet. But as I was thinking through the scenario and asking this company questions about how it was going to work, that’s when I got in touch with you. I asked where this would land on the scale of things and you taught me something I didn’t know about how the government might look at active versus passive activities. Can you explain that to people just a little bit?

Rob Seiger

Oh, 100%. This concept, outside of NIL, has been well-established in the business context for years. Sort of the optics as this comes up quite frequently in the business world is a client will say: “Hey, we’re established in Germany. We want to send an executive over to our US operation and we want this person to do certain things. We’re not going to pay them in the US, we’re going to pay them back in their home country.” Then the payments are not really the issue. What our government gets concerned is about whether the things that you’re doing in the United States would otherwise be considered working or things that you will get compensated for which are ultimately to the benefit of that US operation. So this analysis and NIL was sort of essentially the same. What’s changed since July in terms of the international student is how some immigration lawyers have been thinking about what is considered active versus passive activity, which could be seen as things that need to be compensated for.

I’ll give you the best example of something that could ultimately be considered passive. For example, someone is here in the United States and is investing in a whole bunch of apartment buildings, and other than that does absolutely nothing except receive rent checks every first of the month but does nothing else besides that. Through case law over the years, the government has analyzed that that’s passive income. Not much that this person can get in trouble with because they’re not doing anything to earn that money.

On the other side, active, that’s where social media comes in. If you’re doing social media posts, doing appearances or doing things where you’re actively participating and at the end of it, you are going to get paid for. I think that presents a real concern, because, again, going back to where we started this discussion is that our government doesn’t necessarily care where the money is placed but where you’re earning it. If you’re earning it here, by engaging in active activities, I think that raises an issue in this context.

Unprecedented “case” of social media

Kristi Dosh

I think I asked you when we were working on that story together about if there had been any case law, specifically about social media, as a way to promote and earn money. I think you said there has not been case law specific to social media, correct?

Rob Seiger

Yeah, not yet. Generally speaking, there’s not case law yet on the issue with NIL for the international student athletes altogether. There’s been no test case. And so, cynically, my worry is that, eventually, one of these foreign players who is out doing these active activities, may or may not become the test case of how our government ultimately sees this.

Exploring cases of passive activities

Kristi Dosh

Yeah. Do you want to be the example case and take that risk or not? I’m somewhat risk averse, maybe that’s a product of being a lawyer. But I know I would not want to be the test case. So I get concerned about these student athletes and I just want to look out for them. As I thought that through, and I can’t remember, if you and I discussed this or not when we were kind of going back and forth on this story but I was thinking about what else can be passive. I think the real estate example is great, but in terms of what a student athlete could do that would be passive. I think I talked, either with you or another attorney, about if the student athletes were just getting paid to license their name to a company but that company was doing all the content creation. Say they have a youth sports camp and they’re just using a photo of the player and his name to promote the camp but the player is not actually going to show up and work the camp at all. Is that maybe passive?

Rob Seiger

Yes. Here’s another example, just a straight NFT: You’re providing your image and you’re getting paid for it. But your example, in my mind, pushes the needle further to the passive side where there’s a credible argument, if the government would push beyond having no activity other than their name licensed. Why I think there should be caution about this is because, ultimately, where the foreign national player’s headspace has to be is protecting what I call the long games. Because of the way our immigration construct works, if you get caught up in a visa violation, or something that the government doesn’t like, you’re doing something that ultimately will take your visa away, that really hurts you for the long term.

If you mess up your student visa, they take it away. Say you down the road to get signed, while you’re eventually going to have to apply for a P visa to become a pro athlete. Now you have that negative in your history that you’re going to have to overcome. And then similarly, pushing that out there where a lot of our professional hockey players are in their careers and want to become green card holders, that early mistake, if not thought out appropriately, can really be a tail that goes on forever. So I actually applaud your position and mine too that we all want and the goal, and we all want the foreign player to be able to jump in just like the US-born players. But caution is important. Not because we’re trying to exclude but we’re trying to protect.

Considering the international students beyond the international student athletes

Kristi Dosh

I think sometimes we all are inside this bubble with college athletics and we think about it inside this vacuum. There are lots of other students on campus who also aren’t allowed to be doing these kinds of activities who aren’t athletes. They’re on student visas and this impacts them as well. So this isn’t a matter of the federal government looking at how this is impacting athletes, this is impacting all students. So, are you going to carve out an exception just for student athletes? Or do you have to revamp the whole student visa to allow for these kinds of activities? This isn’t just about athletes; it’s just become a bigger issue because athletes make up such a prominent group and this has been so highly covered now in the media.

Rob Seiger

So well-said because that’s absolutely true. I think that’s the challenge that the government has because the student visa regulations have been in place for years. They’re very narrowly drafted in terms of what they will permit students or student athletes to work, and it’s very, very narrowly focused. The challenge that I’ve discussed with folks on the legislative side is that we recognize the augmentation of NIL so we have to carve out something potentially for the student athlete. But what about the rest of the students? How do we merge these two stakeholders from a regulatory standpoint?

Potential workarounds for compensating of international student athletes

Kristi Dosh

We’ve talked about one of those solutions or proposed attempted solutions. Another one that I’ve seen is a group of student athletes, which includes some US born and some international student athletes, has formed an LLC. My understanding of it is that there’s no profits being distributed to the international student athletes. Although they’re part of this group which is generating money for the LLC, they have not received any of the benefit of that yet while they’re on their student visas. What do you think about that potential workaround?

Rob Seiger

Yeah, it’s similar to what we’re talking about before, which I believe your position is correct, is that thought leaders are trying to come up with creative ways until and when the government gives us guidance. Based on that scenario, I think it’s similar to what we had talked about before is, ultimately, can a line be traced by the government to say that this scenario, this structure, this LLC, was simply intended to be a workaround of the restrictions on student athletes being paid, meaning a violation of the B visa. I think that having a company that’s taking in funds and if there’s a distribution in a passive way, I think, again, you’re building a decent business case that’s not a violation. But we still have to wait and see

The “long game” for international student athletes

Kristi Dosh

I think you brought up a good point earlier that I either didn’t know or hadn’t thought of before. I get emails from some of the international students I have spoken with asking how they could do NIL deals. I was telling you before we hit record, I always tell them: “This is not legal advice.” I am a lawyer, but I am a Georgia-barred attorney. My license is inactive. This is not my area of law. Most of what I know about this, I have learned from you, Rob, and so I am not giving legal advice to anybody.

I get that the international student athletes are watching their teammates do NIL deals and it feels so unfair. Some of them are even watching international student athletes at other schools who are trying these workarounds. They’re anxious to be part of it. Maybe they’ve already been made an offer which is sitting on the table and they’re trying to figure out whether they can take it or not. They have this very narrow focus on not getting caught until after they’ve graduated and no longer care about being here anymore. You brought up that they might be looking at a professional career, not just as a professional athlete but also working for an international company further down the road and have some reason to come back to the US. As you said before, and I just want to hammer it home for people to have a really long-lasting impact: What would you want to drive home for those international student athletes who are thinking about making it to graduation? Then I’ll be fine.

Rob Seiger

I appreciate you raising that which, again, is really the key. Because you’re one of them. I’m one of them. There are a lot of people really thinking this through and trying to sort out if there is a smooth pathway for these foreign student athletes at the moment and there are too many “potential potholes” in that road.

I think the most prudent thing to do is just to be a little thoughtful about it. They should say: “I am here In the United States playing my sport because I want a career. I want to preserve my ability to get that P1 visa, to be able to sign that professional contract without any impediments.” I will say that in over 20 years that I’ve been doing this, visa violations are wildly difficult to overcome and, in some respects, never go away. It’s kind of a joke: The sins of your past coming back? They do, because the government’s very, very savvy on information sharing.

I know it’s neither the popular advice nor the best advice but I think it’s the right advice to just minimally take that potential deal and have it looked at. Can you make that opportunity look more passive than active? Do everything that you can to build your business case so that if the government ever pushes you back, you may argue that it falls under the regulations due to the lack of guidance from the government rather than just seeing what you can get know and then worry about it later. I think caution is key to preserve more of your future than your immediate income.

Insights into the government’s inspection of NIL

Kristi Dosh

Have you heard any rumblings in the circles that you run in that the government is looking at this and might be commenting on it or changing anything in the near future?

Rob Seiger

I’m very lucky to have some colleagues at my firm that spent a lot of time down in DC and I always pester them for some information on what the government’s thinking. What I’ve heard is they’re really waiting this one out because they’re also following that the NCAA is turned upside down and a lot of these issues. They’re sort of waiting for things to settle a bit before they decide to put potentially a policy memo forward. I don’t think we’re going to see anything, anytime soon but I certainly know they’re aware and watching.

Kristi Dosh

And the NCAA is waiting on Congress for some of the things it doesn’t want to legislate so it’s like this vicious circle of everybody waiting on somebody else to do something.

Rob Seiger

It’s what you call that government inaction, right? That’s exactly what’s going on.

Kristi Dosh

What a mess. I thought we might have more clarity as we close in on the one-year mark. But I think we have even more questions than I had it not just on international student athletes, but on any number of things. I have more questions now than I had last July. As it’s laid out there, all these unintended consequences and just scenarios you never imagined happening and collectives have come onto the scene, which is a whole another animal. So I feel like we have even more questions now than we had last time we talked.

Rob Seiger

I couldn’t agree more by the way.

A nutshell point to hammer home for international student athletes

Kristi Dosh

Is there anything we haven’t talked about that you have been watching or seen happen, as this has unfolded since last July, that we need to hit on?

Rob Seiger

Well, I’ve been impressed with a lot of smart lawyers and smart business leaders trying to think this through. Some of the potential workarounds have been pretty impressive about how this can be handled. I’ve looked at every single one of them and thought there were some good ones. I think that, through the thoughtfulness in and people thinking about it and continuing to look at any new potential case law that comes through, eventually, opportunity will come. But I think we’re not there yet. I like to always leave with some hope that this will be resolved. We just have to be patient, again, ultimately, just to protect these athletes who are making the commitment to come all the way over here and build their life and a career. Let’s just let this play out and let the folks in government give us some guidance, and then I think we’ll see a sea change of opportunity come.

The puzzling workaround at Kentucky men’s basketball

Kristi Dosh

I think the only other case I’ve heard about that we haven’t talked about is Kentucky. They also have a men’s basketball player who’s an international student athlete. They’ve been pretty open that he may be doing some NIL activities but they haven’t really explained what he’s doing or how they think they found this workaround. I know a lot of folks who’ve been trying to get some more inside information from Kentucky’s athletic department about what they think they’ve worked out there. You don’t know anything about that situation, do you?

Rob Seiger

Well, no. Only that is, well, two things. One, I spent a fair amount of time writing NIL policies for colleges and universities so I haven’t come up with what they’re doing. For that particular case, I’m very fortunate. I’m a law professor at Villanova. We talked about that one and I just had to chuckle a little bit when the position was as if he was open for business but I don’t know how they’re doing it. I looked for it. And I just couldn’t come up with anything that describes how it’s being done. So, yeah, I don’t know.

Kristi Dosh

Well, stay tuned, folks, we will try and find out. If you’re at Kentucky, you hear this podcast and you want to tell us more, our inboxes are open. Right, Rob?

Rob Seiger

Absolutely, 100%.

Kristi Dosh

Thank you for stopping by again and chatting this through. I wanted to have an update. As I told you, I ended up sending our podcast together from last year to people all the time to listen to. The response I get back is: “But a lot has happened since then. This person did this deal, this person did that deal, like whatnot.” And I tell them I don’t think Rob’s position has changed but I wanted to make sure we did a podcast and talk through some of the scenarios we’ve seen come up and how you feel about those. Not that much has changed except that people are trying to get creative. We’re just crossing our fingers that none of them become some sort of cautionary tale from here.

Rob Seiger

I appreciate you always looking to me to have conversations together. I also feel strongly that your audience is very lucky to have you to be looking out for the latest issues. So I know when something comes down the road, you’ll have it first so thank you for this opportunity.

Kristi Dosh

Yes, I will try and I will put a link over to your law firm website down in the show notes for folks if they want to reach out. I know we’ve got a lot of athletic administrators who listen here. So if they want to reach out and work with you more on these kinds of matters, I will make sure they know how to get in touch with you. Thank you so much for being on the podcast, Rob.

Rob Seiger

Thank you and have a great day. Thank you for your time.

Author

  • Kristi A. Dosh is the founder of BusinessofCollegeSports.com and has served as a sports business analyst and contributor for outlets such as Forbes, ESPN, SportsBusiness Journal, Bleacher Report, SB Nation and more. She is also the author of a book on the business of college football, Saturday Millionaires. Kristi is a sought-after consultant and speaker on topics related to the business of college sports and a former practicing attorney. Click to learn more

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