RELATED ALERT: Student-Athlete Name, Image and Likeness Framework Continues to Evolve (April 26, 2023)
The framework surrounding student-athletes’ ability to profit from their name, image and likeness (NIL) continues to evolve. Within the last several weeks, the National Collegiate Athletic Association (NCAA) issued additional guidance regarding NIL activities that are permissible and impermissible for institutions and their staff members to engage in with current student-athletes. At the same time, an international student-athlete received a unique O-1 visa, which will allow him to profit from his NIL in a way that a student on an F-1 visa may not. Both events have implications for institutions as they continue to navigate this ever-evolving area.
NCAA Guidance on Institutional Involvement in a Student-Athlete’s NIL Activities
Effective July 1, 2021, the NCAA adopted its interim NIL policy, thereby allowing NCAA student-athletes to profit from their NIL. In November 2021, the NCAA made it clear that member schools may not:
- use NIL transactions to compensate student-athletes for participating in athletics and/or for athletic achievements (known as “pay for play”);
- use NIL transactions as an improper inducement; or
- compensate student-athletes for the use of their NIL.
The NCAA later released additional guidance stating that coaches and staff may not organize, facilitate or arrange a meeting between a booster or NIL group and a prospective student-athlete or communicate in any way with a prospective student-athlete on behalf of a booster or NIL group. Questions remained around how an institution could engage with NIL initiatives or groups (sometimes called “collectives”) and current student-athletes.
On Oct. 26, 2022, the NCAA’s Division I Board of Directors issued additional guidance to clarify how existing NCAA legislation and the interim NIL policy address institutional involvement with enrolled student-athletes’ NIL activities, including by naming activities that are impermissible under the NCAA rules and the interim policy. For example, the guidance states it is impermissible for an institution to:
- provide assets (tickets, for example) to a donor as an incentive for giving funds to an NIL entity;
- communicate with an NIL entity regarding specific student-athlete requests for compensation;
- encourage an NIL entity to fulfill a student-athlete’s request;
- allow student-athletes to promote their NIL activities while at required athletic events (practice, press conferences, pre- and postgame activities, etc.); and
- provide services to support the NIL activity (graphics design, tax preparation, contract review, etc.) unless the same benefit is generally available to the institution’s students.
The guidance also makes it clear that it is impermissible under NCAA rules and the interim NIL policy for staff members who own businesses to provide NIL deals to a student-athlete, and that an institutional coach cannot compensate a student-athlete to promote the coach’s camp. Notably, the guidance states it is impermissible for a conference and a student-athlete to engage in revenue sharing, either from broadcast revenue or NIL revenue.
However, the institution may provide a wide range of education on NIL (including to NIL entities, student-athletes, boosters and prospective student-athletes), transmit information about NIL opportunities to student-athletes, arrange space for the NIL entity and a student-athlete to meet on campus, promote a student-athlete’s NIL activity as long as there is no value or cost to the institution (including retweeting or “liking” a post on social media), and request that a donor provide funds to an NIL entity (without directing that the funds be used for a specific sport or student-athlete).
The guidance is effective immediately. For violations that occurred prior to the publication of the guidance, the Division I Board of Directors directed the NCAA enforcement staff to review the facts of individual cases “but to pursue only those actions that clearly are contrary to the published interim policy, including the most severe violations of institutional involvement or pay to play.”
Institutions should carefully review the new guidance and evaluate whether their NIL policies can and should be revised. Moreover, institutions should consider providing training to staff in their athletics and development departments regarding the new guidance, including on what is now clearly permissible under NCAA rules and the interim NIL policy. Please contact the authors of this article or your McGuireWoods contact if you have questions about the guidance or are interested in providing a training at your institution.
International Student-Athlete’s Visa Allows Him to Profit From NIL
As the national landscape for NIL continues to evolve, international NIL issues also continue to garner attention. International students seeking to study in the United States typically obtain an F-1 visa, which permits international students to remain in the United States to complete their academic program.
Generally, students on F-1 visas may hold on-campus jobs only during their first academic year, and work is limited to 20 hours per week or less during regular, full-time academic terms. After the first year, F-1 visa holders may consider off-campus employment opportunities, but these opportunities generally are limited to employment that ties to the student’s field of study.
Under rare circumstances, F-1 students who can demonstrate they are experiencing severe economic hardship may request employment authorization to work off campus in a field unrelated to their studies. These limitations on employment have led international student-athletes to wonder if and how they can profit from their NIL without jeopardizing their F-1 visa status.
According to media reports, Hansel Enmanuel, a guard on Northwestern State University’s basketball team from the Dominican Republic, recently obtained an O-1 visa, which is reserved for individuals who possess extraordinary ability in the sciences, arts, education, business or athletics, or who have a demonstrated record of extraordinary achievement in the motion picture or television industry, and have been recognized nationally or internationally for those achievements.
“Extraordinary ability” means a level of expertise indicating that the individual is one of a small percentage who have risen to the very top of their field. While Enmanuel qualified as an individual with “extraordinary ability,” it is difficult to predict whether (and how many) other international student-athletes will meet this high threshold. However, Enmanuel’s visa status likely will inspire other international student-athletes to seek an O-1, rather than an F-1, visa so they can profit from their name, image and likeness without restriction.
Schools, including international offices, should be prepared for an increase in questions from international student-athletes regarding their ability to benefit from their NIL and about their visa status. Please contact the authors of this article or your McGuireWoods contact with questions.