February 5, 2023

Volume XIII, Number 36

Error message

  • Warning: Undefined variable $settings in include_once() (line 135 of /var/www/html/docroot/sites/default/settings.php).
  • Warning: Trying to access array offset on value of type null in include_once() (line 135 of /var/www/html/docroot/sites/default/settings.php).
Advertisement

February 03, 2023

Subscribe to Latest Legal News and Analysis
Advertisement

Work Visas and One International College Athlete’s Slam Dunk on His Name, Image, and Likeness Rights

A basketball player from the Dominican Republic could be the first prospective National Collegiate Athletic Association (NCAA) athlete to secure an O-1 temporary work visa for those with “extraordinary ability” in athletics to allow him to profit from his name, image, and likeness (NIL) while in school. The move comes as brands are looking to sign college athletes under the NCAA’s interim NIL policy, though international athletes have limited ability to do so under student visas.

Hansel Enmanuel, who plays college basketball at Northwestern State University in Louisiana, has received approval for an O-1 temporary worker visa that will allow him to sign sponsorship or endorsement deals while playing college basketball in the United States, according to multiple reports, in October 2022, and an announcement by a marketing agency promoting him. Enmanuel has made a name for himself as an exceptional basketball player despite having only one arm. He reportedly received recruiting offers from multiple NCAA Division I schools and has several companies interested in him for endorsement opportunities.

NIL Rule Changes

In July 2021, the NCAA issued an interim policy lifting a decades-long restriction on college athletes that had prohibited them from being paid for use of their names, images, and likenesses while in school. The move has led to a wave of college athletes signing sponsorship and endorsement deals to begin earning money while playing college sports. It has been estimated that nearly $1 billion has already been spent by brands on college athlete NIL deals in the first year under this interim policy.

However, the changes left out the approximately 3,000 NCAA Division I athletes (more than 12 percent of all college athletes) who are from foreign countries. Generally, foreign students, including student athletes, study in the United States utilizing an F-1 visa. The F-1 visa has limitations on employment that affect college athletes’ ability to benefit financially from endorsements.

Unfortunately, without clarification from U.S. Citizenship and Immigration Services (USCIS), this has left educational institutions guessing as to what actions are permissible for international college athletes. In the absence of clear guidance, many colleges have advised international college athletes that signing NIL deals could jeopardize their visas statuses. Some international athletes, in an attempt to avoid those restrictions, have reportedly chosen to sign deals in their home countries, perform under those deals in those countries, and pay taxes in those countries. The ultimate decision on visa status lies with the federal government.

O-1 Visa

Enmanuel is believed to be the first prospective college athlete to secure an O-1 temporary work visa to pursue NIL opportunities. O-1 visas are reserved for “persons with extraordinary ability or achievement in the sciences, arts, education, business, athletics” and who have “demonstrated sustained national or international acclaim,” according the U.S. Department of State. The visa, like other temporary work visas, require a prospective employer to first file a petition with USCIS.

O-1 visas are not commonly used for foreign students, as the purpose of O-1 status is employment and performance. While O-1 visas holders are allowed to attend degree programs, such attendance must be incidental to their primary purpose for being in the United States. Status extensions solely for the purposes of completing a degree are not allowed. However, as opposed to the F-1 visas generally used by college athletes, utilizing an O-1 visa can provide additional options for college athletes to benefit financially from endorsements in these circumstances.

Still, Enmanuel is indeed a special case as he is able to play basketball at a high level despite having had one arm amputated when he was a child. His story has been featured in major sports media outlets in the United States, and he has 1.6 million followers on social media, which also makes him valuable to brands as an endorser.

Key Takeaways

Enmanuel securing an O-1 visa could highlight a potential pathway for international college athletes to be able to profit from their NIL rights. Still, it is not immediately clear how realistic an option this will be for the thousands of college athletes from foreign countries who are in the United States, as Enmanuel’s O-1 visa may be the result of his unique circumstances. Given the lucrative nature of NIL deals, it is likely that more international college athletes will look for ways to take advantage, whether in their home countries or by obtaining work visas.

Either way, the potential for college athletes to sign NIL deals could create additional immigration compliance issues for college athletic departments beyond the NCAA regulations. Colleges may want to review their policies and procedures for allowing their athletes to earn money from their NIL While the NCAA has lifted its restrictions on an interim basis, individual schools may set their own policies and there is the likelihood that the NCAA will issue additional regulations governing NIL deals in college sports.

© 2023, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XII, Number 333
Advertisement
Advertisement
Advertisement

About this Author

Bethany S. Wagner Labor Attorney Pittsburgh Ogletree Deakins
Of Counsel

Bethany Wagner is an experienced employment lawyer, focusing on both employment litigation and preventive advice, counseling, and training. A former collegiate athletic department executive, Bethany also has extensive experience in issues facing institutions of higher learning, including Title IX and NCAA compliance issues.

In her employment practice, Bethany focuses on preventative advice and counseling, particularly in the areas of performance management, avoiding issues of workplace discrimination and harassment, and managing disability accommodation and leaves of absences...

412-315-6040
Advertisement
Advertisement
Advertisement