NIL-related question about foreign players
Sam and John U. Bacon talked about NIL deals for foreign players this morning, which is relevant to Michigan in part because of Diabate, Houstan, and the possibility of adding Yohan Traore. Sam referenced a Kentucky bill (https://www.aseaofblue.com/2022/3/8/22966602/kentucky-house-nil-bill-uk-basketball-news) that, while apparently not yet signed by Kentucky's governor, is designed to let foreign students make money from NIL deals. Oscar Tshiebwe of UK, who is Congolese, already believes that he can make NIL money (https://www.aseaofblue.com/2022/2/20/22943480/oscar-tshiebwe-nil-kentucky-basketball-news-machine-gun-kelly). Sam and JUB talked about whether Michigan should pass a similar bill.
But here is my question (hopefully we have some immigration attorneys): can the states decide this issue? Isn't this an issue of federal law that is determined in part by the Dept. of Homeland Security's interpretation? Am I missing something, or are Tshiebwe and Kentucky guilty of wishful thinking?
March 25th, 2022 at 12:32 PM ^
Even if the state of Michigan could do this, there's no way that the University will make a push to do so. Kentucky basketball has the political strength and will behind it to get these kinds of things done (and done quickly). Michigan basketball just doesn't have that same ability. Maybe the football program would have that power if the athletic department chose to direct it in such a way, but precedent has shown they are unwilling to do so.
I see it very unlikely that the school is going to go through the huge hoops and hastle politically for something like this (getting international athletes the right to profit from NIL). Certainly not in time for it to affect Diabete.
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March 25th, 2022 at 12:33 PM ^
I’m not a lawyer, but the long and the short of it (as I understand things) is that the states can do as they wish. The federal government can then challenge those actions under the Supremacy Clause, and then (most likely) it would go to the federal courts and maybe the Supreme Court. In this case, I think the DOJ would have to decide whether to challenge these loopholes (which would mainly relate to federal visa requirements and rights to work for non-citizens and non-permanent residents) and they may or may not decide to do that. But in the meantime, the states can make these loopholes to allow foreign players to collect NIL money.
March 25th, 2022 at 12:33 PM ^
States cannot decide that people here on student visas can suddenly do things outside what's allowed on that visa.
From what I see on reddit - the UK issue is that not only does Tshiebwe want to earn that money now, but he wants to access it now to bring is mom to the US. Seems like UK might have figured out a solution to earning the money, but accessing it might violate his visa status.
The federal govt I'm sure is not concerned with the conflict this has for the <100 people who can't earn NIL when compared to the 600k student visas the US approves each year.
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plus from what I've read it seems like the Kentucky bill is signing into law something similar to their governors executive order from last summer. I don't think that'll be radically different from what Michigan, Ohio, California, FL, etc. did last year.
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For Houstan/Diabate - they might not have as much of a need to access it now while they're in school so maybe that changes their equation. But if they're here on student visas they'll hit the same issues
edit: as part of applying for a student visa, this is part of the form. I wonder what UK is doing to meet these restrictions:
EMPLOYMENT. Unlawful employment in the United States is a reason for
terminating your F-1 status and deporting you from the United States. You may
be employed on campus at your school. You may be employed off-campus in
curricular practical training (CPT) if you have written permission from your
DSO. You may apply to U.S. Citizenship and Immigration Services (USCIS) for
off-campus employment authorization in three circumstances: 1) employment
with an international organization; 2) severe and unexpected economic hardship;
and 3) optional practical training (OPT) related to your degree. You must have
written authorization from USCIS before you begin work. Contact your DSO for
details. Your spouse or child (F-2 classification) may not work in the United
States
PENALTY. To maintain your nonimmigrant student status, you must: 1)
remain a full-time student at your authorized school; 2) engage only in
authorized employment; and 3) keep your passport valid. Failure to comply with
these regulations will result in the loss of your student status and subject you to
deportation.
March 25th, 2022 at 12:54 PM ^
I imagine the argument would be that the work involved in an NIL deal would somehow constitute practical training. Severe economic hardship would be very difficult to prove.
It doesn't sound like an argument that would hold up to much scrutiny, so it's really a question of whether or not USCIS would be interested in making a splash with a high-level prosecution of a foreign athlete.
Personally, I'm of the opinion that Congress should carve out an NIL exception for all F-1 visas. It's not particularly reasonable to think that NIL work is competing with Americans, and if some international student can make money as an influencer or whatever, more power to him. As you point out, the likely number of people actually affected will be very low.
Yeah - the federal govt cares very little about these 100 people. They'd be more concerned about the 600k others getting jobs under the loophole they create. But who knows, I'm sure if a group of universities pushed a little they could get a group of senators to make a change
Relate to their employment: learning how to make money off their brand, right?
"related to their degree", so maybe make them all Marketing majors and try to get around it that way?
also - it has to be approved first, so these kind of flimsy justifications might just depend on who is reviewing the employment application
Maybe Kentucky will get around these federal rules by issuing their own work visas
Kentucky sure is an accommodating state for foreign students. I wonder if they would jump through these hoops for a 5'8" / 135 lbs student from Africa.
Is NIL actually employment in a legal sense? It doesn't seem like any of these athletes are being employed by any company or organization
March 25th, 2022 at 12:54 PM ^
This isn't me trying to be funny nor is it intended to demean either Diabate or Houston.
But, honestly, who is signing them?
Is there anything now prohibiting NIL income from a foreign (e.g. Canadian) entity? If not, the Ontario operation needs to get ramped up.
Good lawyers find legal ways to serve their clients’ needs. I’m a retired labor/employment attorney who has worked in-house at a mega-university. The restrictions on foreign students’ visas are focused on “employment”. This is intended to prevent such student visas from being used to circumvent the general immigration policy of preventing foreigners from taking away jobs from US residents. However, if a foreign student does not work under an employment contract or otherwise provide services, then no visa violation has occurred. The foreign student may alternatively make a contract of sale of intellectual property he/she owns (their NIL). This is not either an employment contract nor a contract for the services of an independent contractor. Although I’m not an expert in immigration law, I doubt the student visa restrictions were intended in any way to prevent such sales of unique intellectual property. The mere receipt by foreign student athletes of significant sums, alone, is not an issue, because they have already been receiving substantial tuition, room and board and associated financial benefits from their schools.
Even if you're right about the ability to sell NIL under immigration law -- and, FWIW, I don't think you are -- it doesn't much matter, unless you're going to throw in the towel entirely on the rules that the NCAA tried to set up.
NIL deals are supposed to involve actual services performed -- the car dealer can give an athlete a new car, but the athlete is supposed to make appearances, or drive it around with an advertising placard, or something. No-show jobs are verboten.
Also, whereas NIL is arguably intellectual property, it's not something that can easily be transferred. Perhaps Diabate could sign a contract saying that BigMichConglomco can use his NIL. But if he poses for a picture, now he's a model. If he gives a statement about their products, now he's a spokesperson. About all he could do under your interpretation is sign an agreement that says "BigMichConglomco can use my name and imply my endorsement when marketing their products." Maybe they could buy game images from the university to use in their ads, I guess?
BTW, the reason that I don't think you're right about the immigration law is that when I've looked this up before, I've found a number of firms specializing in immigration law for self-employed foreigners. Being self-employed is still considered employment, and I suspect that receiving royalties for the use of your name would be self-employment.
I 100% agree that a solution should be found to even the playing field, but I think it needs to come from Congress, not from lawyers. :)
The problem is they aren't selling their IP, they generally have to do work in order to get paid as part of NIL making it an employment contract. You could maybe make arguments under group licensing for likeness to be included in a video game, but they wouldn't be able to be in a subway ad like Blake Corum was for example,
I'm not a lawyer, but a former (25+ years ago) consular officer, so my expertise is both peripheral and rusty, but I think this is on the right track. The issue for a student (F) visa is employment in the U.S. But I don't think that prohibition would apply to employment outside the U.S. So maybe a foreign firm could hire an athlete for their NIL (and could, presumably, export whatever they were selling to the U.S., since that's where most of the end-use consumers would be). Other possibility could be for foreign student-athletes to be on a visa other than F. E.g. a J (cultural exchange) visa permits both work and study -- that's how Au Pairs come here to get jobs as in-home nannies and also go to school. But perhaps NCAA rules require foreign scholarship athletes to be on Fs? I don't know.
I doubt that the NCAA cares much about visa status -- except that they're trying hard to make sure that athletes aren't employees from a labor law perspective. So I'm not sure a J visa would work, because I believe a J visa has to be sponsored by an employer.
I do agree that foreign NIL would be valid on an F-1 visa. I'm not sure how it would be taxed -- the player would clearly meet the substantial presence test, and I suspect that the IRS would deem the income as effectively connected to a US trade, so I'm guessing they'd have to pay US federal income tax. We could potentially end up in a situation where the USCIS agrees that the player isn't employed in the US and the IRS insists that they are. :)
For Canadians, the answer may be as simple as doing the work in Windsor. If Tim Horton's wants to do an Owen Power ad, if they film the ad in Windsor and pay him there, I can't think of any reason they couldn't show that ad in the Metro Detroit market.
Even if, say, Varsity Ford wanted to do that, I suspect they could subcontract the work to a Canadian firm and stay on the right side of the law (but, Varsity Ford. if you're reading this -- ask your lawyers, not me. :)
If they go to the NBA they will need a work visa or something like that right? Who couldn't they get that while staying in school at the same time?
Because that visa category isn't applicable to students. Furthermore, they might not even be eligible -- whereas a professional athlete has shown outstanding ability in his field, which is the requirement, a prospective student-athlete probably has not (yet).
Completely different requirements. And for a work visa you need a work sponsor which the school wouldn't do as they aren't the employer.
Just give them the Calipari Briefcase
Federal student visa issue. Nothing states can do about it. However, if the money is held in escrow and not paid until the kid doesn’t care about the visa (turns pro), there’s no reason he/she can’t take the money. This really has nothing to do with NIL. Any income violates the provisions of the student visa.