Navigating the Complex Landscape of NIL for International Athletes

The Gaps in Law Interpretation

Sometimes, the key to interpreting the law lies not in what it explicitly states—but in what it leaves unsaid. This idea is particularly relevant in the evolving landscape of college sports, especially concerning the recent name, image, and likeness (NIL) regulations that the NCAA introduced in summer 2021. This development has roused much debate, particularly regarding the status and rights of international athletes in the United States.

The Initial Concerns for International Athletes

When the NIL policy was first rolled out, many believed that international student-athletes—most of whom hold F-1 student visas—would be barred from participating in NIL deals. Under U.S. immigration law, F-1 visa holders are generally prohibited from engaging in employment that involves performing labor or services for money. Thus, the conventional wisdom suggested that international athletes could only engage in NIL activities while outside the United States.

A Different Interpretative Lens

However, Benjamin Snyder, a North Carolina-based immigration lawyer, saw things differently. He dissected the legal landscape and perceived that many NIL deals could be classified as passive income, rather than active employment. Unlike labor-related income, passive income does not face the same restrictions for F-1 visa holders. Based on this novel interpretation, Snyder argued that international athletes could indeed accept third-party NIL payments while in the U.S., transforming the conversation entirely for college sports coaches eager to recruit international talent.

Welcome News for Coaches

Snyder’s insights led to a wave of relief among college coaches, particularly in sports like basketball, where international athletes are increasingly sought after. This novel perspective opened doors for players who might otherwise opt to play professionally overseas instead of continuing their education in the U.S.

The Role of Compliance and Taxation

Since then, Snyder has become a key player in efforts to include international athletes in revenue-sharing agreements outlined in the House v. NCAA settlement. He has advised multiple institutions across major conferences, including the Big Ten, ACC, and Big 12. A crucial aspect of these contracts is the need for proper tax withholding, which varies depending on whether payments are classified as passive income.

The Challenges of Persuasion

However, gaining acceptance for this new interpretation can be a significant hurdle. Snyder’s first challenge lies in convincing campus international student services offices—often the frontline enforcers of immigration policy—of his legal reasoning. So far, he has had no rejections, a promising sign amid a complex legal landscape.

A Murky Legal Environment

The realm of immigration law is notoriously complex and often contentious. Snyder acknowledges the ambiguity present in current laws and regulations, which leaves practitioners navigating uncertain waters. Nevertheless, he maintains that his legal interpretations are robust, drawing on distinctions within the U.S. tax code about earned income versus passive royalties.

Legal Precedents to Consider

A pivotal case in Snyder’s rationale stems from the 1983 Kramer v. Commissioner ruling, which distinguished royalty income from earned income under minimum tax rules. The court determined that a portion of former tennis pro Jack Kramer’s endorsement income constituted royalties and did not count as compensation for personal services. This precedent provides a framework for differentiating between passive income and employment.

Broadening Perspectives

While some leagues have begun to align with Snyder’s views, skepticism remains. For example, while the Big Ten has not openly taken a definitive stance on permitting F-1 visa holders to receive revenue-sharing payments, it has structured its revenue-sharing agreements in a way that could accommodate international athletes.

Diverging Opinions in Legal Circles

Not everyone is convinced of Snyder’s argument. Ksenia Maiorova, a Florida attorney specializing in international athlete advisement, labels Snyder’s position a “legal fiction,” suggesting that it focuses more on appearance than the underlying substance of the law. Her concerns echo through the legal community, emphasizing that the ultimate decision rests with consular officers who possess significant discretion in visa approval.

Assessing the Risks

Former consular officer Chris Richardson has voiced concerns over whether agreements classified as passive income will pass muster with visa adjudicators. He warns that, despite the potential for a more lenient interpretation, many of these deals involve active engagement, which complicates the visa landscape. Despite these challenges, Richardson noted that some visa officers may adapt to evolving circumstances, potentially allowing for more nuanced interpretations.

Uncertain Territory Ahead

With ongoing discussions in communities like the National Association of College Directors of Athletics (NACDA), it has become clear that institutions are beginning to operate under the assumption that NIL regulations enforced by the NCAA will not be stringently upheld. However, the real enforcement power lies with U.S. Immigration and Customs Enforcement (ICE), creating an unpredictable dynamic that leaves institutions wary.

The Political Complexity of Immigration Law

The political context surrounding immigration adds another layer of complexity to this issue. As the Trump administration has taken a combative stance towards higher education, fears abound that policy enforcement could impact public institutions, especially in states where support for Trump is strong.

Legal Reassurance Amidst Uncertainty

Snyder continues to defend his legal interpretations with confidence yet admits the unpredictability of immigration laws, which can shift based on executive discretion. As of now, Snyder reports that none of his clients’ F-1 applicants have faced denials, and many are currently active on campus.

Alternatives for International Athletes

For some, specifically those seeking a more secure path, the P-1A work visa offers a potential alternative. Designed for “internationally recognized athletes,” the P-1 can facilitate participation in promotional activities, but the application process is more burdensome, as it is tailored for professional athletes rather than those engaged primarily in academic pursuits.

Current Legal Battles

Maiorova is actively involved in a lawsuit for LSU women’s basketball player Last-Tear Poa, challenging the denial of her P-1 visa application. The outcome of such cases could shed light on how immigration laws apply to the fast-evolving world of college athletics.

Concluding Thoughts on Evolving Regulations

As Snyder noted, “This is still a very new and emerging area.” With international athletes increasingly intersecting with NIL laws, the ongoing conversation is likely to shape the future of college sports and the legal frameworks that govern them.