THE ABANDONMENT OF INTERNATIONAL COLLEGE ATHLETES BY NIL POLICY

A new era in college sports dawned on July 1, 2021, when the National Collegiate Athletic Association announced that college athletes were (subject to various limitations and restrictions) entitled to earn money based upon their name, image, and likeness ("NIL"). NIL is now a billion-dollar industry. The more than 450,000 college athletes across the United States are now able to leverage NIL to make paid appearances, endorse products or services on social media, receive compensation for autograph signings, and promote local and national businesses. Excluded from most NIL opportunities, however, are the 12 percent of athletes recruited from outside of the United States. Most international athletes enter the United States on student ("F") visas, which are subject to very specific rules for when employment is permissible in the United States. The creators of the F visa had no reason in 1952 to include an NIL exception to the work prohibition, which consequently results in serious inequity for these athletes today. This Article details the tax and employment prohibition issues facing foreign athletes, including the way in which current F visa rules may be complied with either by engaging in NIL activity abroad or by generating NIL income characterized by the Internal Revenue Service as passive rather than active. The proposed paradigm shapes an approach by which foreign athletes may maximize NIL earning potential, while also highlighting obvious areas for improvement in the current framework of law and regulation.