Bill Introduced Allowing International Student-Athletes to Enter into NIL Deals
By Elyse Ponterio
On October 17th, Republican Senator Pete Ricketts of Nebraska introduced a bill alongside Democratic Senator Richard Blumenthal of Connecticut to allow international student-athletes to be able to receive money from name, image, and likeness (NIL) deals.[2] Currently, international student athletes cannot profit from their NIL due to visa restrictions. This bill, called the Name Image and Likeness for International Collegiate Athletes Act, would create a subcategory of the student visa that would authorize student-athletes to enter into NIL deals.
Current NCAA NIL policy allows student-athletes to receive compensation from marketing themselves. International students, however, cannot enter into NIL deals because NIL deals are considered off-campus employment. In the United States, international students can only work on campus under their student visa status. If an international student athlete violates the terms of their visa, they can face severe consequences such as termination of their visa status and withholding of future benefits like green cards.
Passage of the Name Image and Likeness for International Collegiate Athletes Act by the Senate will likely be influenced by previous and pending case law affecting whether college student athletes are considered employees.
In 2015, the National Labor Relations Board (NLRB) decided that it does not further the policies of the National Labor Relations Act for the NLRB to assert jurisdiction over university scholarship athletes.[3] In that case, both scholarship athletes from Northwestern University, a private university that was a member of the NCAA, and the College Athletes Players Association (CAPA), a sports association, petitioned the NLRB. The athletes and CAPA asked the NLRB to assert jurisdiction over the athletes as employees under the National Labor Relations Act. The NLRB reasoned that state-run institutions and universities are subject to each state’s labor laws, not the labor laws of the National Labor Relations Act. Additionally, the NLRB reasoned that state laws in several states with universities that are members of the NCAA hold that scholarship athletes at public universities are not employees. In this case, the NLRB said a determination of whether scholarship athletes are employees was unnecessary because asserting jurisdiction over the university scholarship athletes would not promote stability in labor relations.
The NCAA’s bylaws prohibit schools from offering wages to student-athletes and prohibit student-athletes from accepting wages.[4] The NLRB is encouraging the NCAA to classify student-athletes as employees. In the 2019 case Johnson v. NCAA, student-athletes filed a classification lawsuit against the NCAA claiming they should be paid.[5] The student-athletes claimed the NCAA violated the Fair Labor Standards Act and unjustly enriched themselves by benefiting from their uncompensated labor. In 2021, the U.S. District Court for the Eastern District of Pennsylvania denied a motion to dismiss the claims. The case is now pending before the 3rd U.S. Circuit Court of Appeals.
Student athletes are actively trying to gain employee status along with the statutory rights of employees, including the right to unionize and receive workers’ compensation for work-related injuries. For example, in September the Dartmouth men’s basketball team attempted to unionize through the National Labor Relations Board.[6] The men’s petition, which lists 15 players as the number of employees and the college as the employer, is supported by the Service Employees International Union.[7] If the men’s basketball team petition is granted it will be the first student-athlete union in the country.
Although the NCAA has shown a strong resistance to unionization and opposition to classifying student athletes as employees in the past, there may be some hope for Dartmouth’s men’s basketball team. In October 2023, the NLRB rejected the University of Southern California’s request to dismiss a complaint that classifies the school, the Pac-12 and NCAA as joint employers of Trojans football players, men’s basketball players and women’s basketball players.[8] A letter from the NLRB’s office of the executive secretary indicated that USC filed its motion too late.[9] Although USC’s motion was rejected on procedural grounds, this is a step in the right direction for student athletes.
It is important that the drafters of this bill pay attention to prior case law to ensure the bill is not thrown out. The NLRB and various student athlete teams along with the Johnson case all push the NCAA to allow student athletes to be classified as employees. If the NCAA were to allow student athletes to receive compensation for their participation in sports, the bill must be carefully drafted with this in mind and lay out specific guidelines allowing international student-athletes to receive payment while not violating their visa status.
[1] Featured Image: https://businessofcollegesports.com/nil-for-international-athletes/
[2] https://www.klkntv.com/sen-ricketts-introduces-bill-to-let-international-student-athletes-make-nil-deals/
[3] Northwestern University and College Athlete Player Association,362 NLRB No. 167 (N.L.R.B.) 2015.
[4] https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/student-athletes-employees-ncaa.aspx
[5] J Johnson v. Nat’l Collegiate Athletic Ass’n, 556 F. Supp. 3d 491 (E.D. Pa. 2021)
[6] https://www.si.com/college/2023/09/15/dartmouth-college-basketball-file-petition-form-
[7] https://www.si.com/college/2023/09/15/dartmouth-college-basketball-file-petition-form-union#:~:text=Players%20from%20the%20Dartmouth%20men%27s,Relations%20Board%20in%20Boston%2C%20Mass.
[8] https://www.athleticbusiness.com/operations/governing-bodies/article/15637285/nlrb-rejects-uscs-motion-to-dismiss-complaint-on-classifying-athletes-as-employees
[9] https://sports.yahoo.com/usc-defends-student-athlete-media-140000233.html?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAADNkXgJ1LybbZqFwZSViwp5LAN396gvXwp77ze3cUzoI9N-S7qdx4HniMy1qJnU2UO3qHPijSsg7wKBp2f_QFyX61hVZfrpMyHY_Byj4kug3ED1v1zoPkfA68_UFhn-KyxqXhDvOyP8byVSilgjGCuPhE9q-cCZS9bqKOKVeewZp
Ponterio is a student at the University at Buffalo School of Law.