Throughout our Developing a NIL policy checklist series, we’ve reviewed: (1) the five foundations pillars; (2) general statements to include; (3) the use of institutional logos, marks, and facilities; (4) disclosure and institutional review of contracts; and (5) limitations on NIL activities. In this sixth installment, we consider language to include in your policy to acknowledge student-athlete representation and guidance for international student-athletes.
Again, before using this checklist, please note that the intricacies of name, image and likeness (NIL) all but mandate that you consult with your policy team and counsel, as our checklist may not reflect your institution’s priorities or approach to this complex issue. Additionally, while we recognize that the majority of existing state NIL laws share considerable similarities, we use as an example only, Ohio Executive Order 2021-10D, and our focus is on National Collegiate Athletic Association (NCAA) compliance. Please be mindful that your state many not have any NIL laws or guidance.
1. Considerations for language acknowledging student-athlete representation.
Both the NCAA’s interim policy and Ohio’s NIL law permit student-athletes to engage professional representation with respect to their NIL pursuits. However, because this is new territory for student-athletes, many of whom are 17-22 years old and inexperienced with professional representation, the professional representation language in your NIL policy may be both the most enticing and the most likely to cause confusion. Confusion on this point can be problematic for student and school alike.
Digging further, the NCAA NIL interim policy states that, unless otherwise invalidated by state law, student-athletes may use a professional service provider for engaging in NIL activities. In its November 2021 Q&A, the NCAA defines a “professional service provider” as “an individual who provides third-party services to a prospective or current student-athlete” and notes that this is “not limited to, an agent, tax advisor, marketing consultant, attorney, brand management company or anyone who is employed or associated with such persons.”
But the NCAA isn’t the final word on this. In Ohio, as in many other states with a NIL law or regulation, the executive order reiterates the NCAA interim policy by providing that no college or institution may “[i]nterfere with or prevent” a student-athlete from participating in athletics because the student-athlete has professional representation related to NIL. Going one step further, Ohio also permits institutions to require student-athletes to report their representation to the institution.
Easy enough, right? Well, it gets trickier. Agents are governed by additional laws at the state, and even federal, level. For instance, agents registered in Ohio are governed by Chapter 4771 of the Ohio Revised Code, which means that they must: (1) be registered under Ohio law, unless the agent is an immediate family member; (2) be compensated at their regular rate; and (3) make the distinction in representation of whether the agent is representing in the student-athlete as a student-athlete or a professional athlete, but not both. Beyond state law, the federal Sports Agent Responsibility and Trust Act also seeks to protect student-athletes, though its reach (and enforcement) is somewhat murkier.
Why does this matter to schools? Failure to comply with these requirements could jeopardize student-athlete eligibility, which typically leads to a lot of fingers being pointed at compliance staff.
As you develop your NIL policy, include the language from the NCAA interim policy and/or your state’s law on this point. From there, be sure to underscore the obligations that are borne by student-athletes and their representatives, and most certainly highlight that any could lead to disqualification and jeopardize amateur status. This space in particular is ripe with the potential for misconduct and student-athletes may be particularly vulnerable.
2. Considerations for language providing guidance to international student-athletes.
The NCAA’s November 2021 Q&A states that international students can “benefit” from their NIL. However, it also notes that international student-athletes “may consider consulting” with their institution “related to maintaining their immigration status and tax implications.”
For those of you with any experience assisting international students, this apparent blessing of the NCAA should give you great pause. Indeed, international student-athletes will likely find that earning money from their NIL will violate the terms of their, likely, F-1 visas, potentially ending their college athletic eligibility and time in the country with revocation of their visas.
International students on F-1 visas are sponsored by their respective schools, which in turn have a duty to educate international students of expectations of the F-1 visa. While there are some nuances, generally, F-1 visa holders cannot work or earn money through work.1 International students on other visas may have similar restrictions about earning an income that could also result in revocation of their visas. Because the rules for each type of visa are complicated, vary and could result in revocation, it is important that your policy is upfront that international students should not engage in NIL activities before first consulting your institution’s designated international office and/or an immigration attorney.
To avoid any confusion and unintended (and potentially serious) consequences for your international student-athletes, we recommend including clear language in your NIL policy lead with the cautionary negative that most international student-athletes cannot be compensated for their NIL.
1 An international student could potentially violate their F-1 visa requirements by working without pay. To avoid some of these consequences, we’ve seen some international student-athletes engage in NIL charity work where they money made off their NIL goes directly from the donor to the charity organization.