D espite the end of this year’s NCAA basketball championships, roughly 24,000 student athletes across all college sports are still at risk of elimination. Not from anybody’s March Madness bracket but from the very country where they chose to pursue their scholastic and athletic endeavors.
Earlier this year, the National Labor Relations Board (NLRB) ruled in favor of categorizing Dartmouth’s basketball players as “employees” under federal law, making them eligible for union representation. While heralded as a victory by some, this development jeopardizes the legal status of any foreign student on Dartmouth’s team. “I hope they have retained excellent immigration counsel, because their student visas are now at risk,” immigration lawyer Ksenia Maiorova quipped.
If these international students are legally redesignated from “student athletes” to “employees,” they could lose their eligibility to remain in the country on their student visas or may no longer be able to play without violating their visa conditions. This has the potential to not only disrupt their studies in the U.S. but also make them subject to denial for other visa categories in the future.
These legal risks could soon spread to thousands more international students. A separate case in which unions are seeking to reclassify student athletes is working its way through the Court of Appeals for the Third Circuit. Unlike the NLRB case that concerned Dartmouth students, the Third Circuit’s ruling could affect the visa statuses of all international athletes enrolled in any public or private university within the court’s jurisdiction.
Foreign student athletes’ delicate legal situation was first highlighted in 2021, when the NCAA issued a policy that allowed athletes to be compensated for the commercial use of their name, image, and likeness (NIL). This allowed student athletes to get paid for activities such as appearing in advertisements, signing memorabilia, or partaking in public-speaking gigs. But because most international students aren’t eligible for employment compensation, athletes on student visas have largely been unable to cash in on NIL deals.
To rectify this disparity, Senator Pete Ricketts (R., Neb.) introduced the Name, Image, and Likeness for International Collegiate Athletes Act, which would allow foreign students to benefit from NIL compensation. But even if this bill fails to pass and the status quo remains, international student athletes can at least steer clear of legal risks by choosing to avoid NIL agreements altogether. The same can’t be said about instances in which a court or agency puts students’ visa status in jeopardy by foisting the damning label of “employee” on them.
It’s apparent that lawmakers need to start thinking beyond the barriers to NIL agreements and clarify that college athletes aren’t employees under the Fair Labor Standards Act. This clarification would ensure that athletic opportunities remain available for international and most domestic students alike.
Thousands of students are able to play college sports thanks to the tax-deductible donations that keep their athletic programs afloat. If these student athletes are suddenly recategorized as employees, their athletic departments’ educational mission would be questioned by the IRS, and these departments could lose the lion’s share of their revenue. Given that most programs already operate at a loss, many of them would be forced to make major cuts — with sports such as soccer, tennis, and volleyball likely being just the first on the chopping block.
Ultimately, both foreign and domestic student athletes ought to be free to profit from NIL and any other payment opportunities offered to them by a business or school. But Big Labor’s attempt to make certain benefits mandatory by redefining students as employees would only result in fewer collegiate and international athletic opportunities.