NCAA's international athletes still facing NIL challenges

UConn‘s Adama Sanogo and Miami‘s Norchad Omier will meet on the court Saturday night, both of them key players who have helped clear their teams’ path to the Final Four in Houston. But despite their growing popularity, both big men are part of a group of college athletes who face complicated obstacles making it harder for them to cash in on their starring roles on one of the biggest, most lucrative stages in college sports.

Sanogo is from Mali; Omier from Nicaragua. They are in the U.S. on F-1 student visas, the rules of which strictly limit their ability to earn money through name, image and likeness endorsement deals while in America.

“I was excited about it. I was like, ‘Oh, I’m going to have a chance to do it,'” Omier told ESPN. “Then I found out that international students can’t do it in the U.S. I mean, I’m in the U.S. most of the year. … I was kind of disappointed, but you just got to keep going.”

Seven of the eight teams playing in the men’s and women’s Final Fours this weekend have at least one player who is an international student, including stars like Sanogo, Omier and Virginia Tech‘s Georgia Amoore. Miami and UConn have four international players each. Both South Carolina and Virginia Tech have two. According to the NCAA, roughly one out of every eight athletes across all Division I sports is from a foreign country.

While rule changes have allowed their U.S.-born teammates to make money through NIL deals since July 2021, questions about how to give international athletes the same capabilities remain unresolved two full seasons later. Legal experts say a lack of clear expectations for how the Department of Homeland Security will view these deals, and what impact that could have on the immigration status of players, makes the NIL marketplace riskier for international athletes than it needs to be.

With the help of their schools and agents, international players have found some creative ways to work within the rules to make money. But those are often complicated, imperfect solutions to a problem that college sports leaders, politicians and immigration lawyers all say should be relatively simple to remedy.

Last week, U.S. Sens. Richard Blumenthal and Chris Murphy from Connecticut published a letter to the Department of Homeland Security asking for the government branch that oversees immigration to provide some clarity — and potentially some new rules — to help international athletes. On Tuesday, Blumenthal mentioned Sanogo and UConn women’s star Aaliyah Edwards, who is Canadian, while pressing Homeland Security Secretary Alejandro Mayorkas to commit to clarifying or changing their rules.

“We are indeed looking at the issue very carefully,” Mayorkas said. “And I hope quickly, and we will move with deliberate speed.”

The Department of Homeland Security did not respond to ESPN’s questions about that process earlier this week, but legal experts say there are three paths to open NIL doors for the NCAA’s international athletes. The first option is for the department to publish an interpretation of its current rules making it clear that NIL activity is not a violation of the terms of an F-1 student visa. While the quickest and cleanest of the options, an interpretation memo would be “a little bit of a stretch” of the current F-1 regulations, according to Creighton law professor David Weber.

Weber, who has written multiple academic papers about NIL and international athletes, said a second option would be for the department to create new regulations or a new type of student visa that allows for endorsement deals. This could apply narrowly to college athletes or potentially to any foreign student who is part of the new influencer economy. The process to create new regulations usually takes between six and 18 months.

The NCAA’s amateurism-based business model is in the midst of several other legal challenges that, if successful, could further professionalize the athletes’ relationship with their schools. Those efforts could significantly reshape how athletes are able to make money by the time any attempt to change visa rules would be completed. The unsettled landscape for college athletes may be part of the reason why Homeland officials have not yet acted on the issue, according to Weber.

“I think DHS didn’t want to be the party to move first. They wanted to see if there would be any direction coming from Congress or any significant change coming from the NCAA,” Weber said. “They didn’t want to go through the machinations of creating changes on their end for something that could change suddenly.”

The third option would be for Congress to pass new legislation plainly stating that international college athletes are allowed to make money from NIL activities. The NCAA has asked Congress for broader help in creating rules to determine how college athletes can make money. Despite more than a half dozen proposed bills in the past several years, those attempts have yet to gain any momentum. There hasn’t been any notable concerted effort to split off the international athletes’ problem from the more holistic discussion despite it being considered the “low-hanging fruit” of a complex issue, according to immigration lawyers Amy Maldonado and Ksenia Maiorova.

Maldonado and Maiorova have both helped college athletes seek alternative visa options to be able to make money while in the United States. They say life would be much simpler for those clients if Congress passed a clarifying law, but right now there isn’t enough outside pressure on lawmakers to take action.

“The political will isn’t there,” Maiorova said. “No one is getting together and saying we need to address this collectively. When interested parties are aligned and major stakeholders are aligned in requesting a change, it helps the government see there is a genuine issue here.”

An NCAA spokesperson said the association wants all of its athletes to have NIL opportunities and has made that clear to members of Congress, but declined to answer questions about the specific conversations its leaders have had with lawmakers on behalf of international athletes.

In the absence of rule changes or any added clarity, international players and their schools have started to find less convenient, alternative routes to cashing in on their fame. For many, the safest route has been to do NIL-related work while back in their home country. UConn’s Sanogo said he earned money by organizing a basketball camp in Mali last summer, and Miami’s Omier said he had several endorsement deals arranged during a trip back to Nicaragua, which his sponsors have shared during the Hurricanes’ tournament run.

From Managua to #MarchMadness! @LifeWallet athlete Norchad Omier is the first Nicaraguan-born Division 1 men’s college basketball player! 🇳🇮 🙌 Join us in wishing him & the #Canes good luck as they take on #Houston Friday in the #Sweet16 pic.twitter.com/shw61OfLho

— LifeWallet Sports (@lifewalletsport) March 22, 2023

Others, such as Kentucky star Oscar Tshiebwe, have been able to take advantage of team trips to play exhibition games outside of the United States. Tshiebwe reportedly made nearly $500,000 by filming advertisements and signing autographs during a preseason trip to the Bahamas this past August.

When BYU‘s basketball team traveled to the Bahamas months later for an early-season tournament, associate athletic director Gary Veron made sure to alert several team sponsors that the trip presented a limited window to execute endorsement deals with their foreign players.

Veron, who oversees NIL efforts for all of the Cougars’ teams, said BYU athletes have also found passive ways to collect income while on campus. Student visa rules don’t prevent athletes from receiving money while on American soil if the work that generated that money was done elsewhere. For example, Veron said BYU’s Nigerian-born forward Gideon George gave a Utah-based car dealership permission to use existing photos of him in advertisements in exchange for a car. Because there was no photo shoot or active work George had to do as part of the deal, Veron said it did not violate his student visa terms.

“If the athlete and the company are willing to be meticulous with documentation, there is no reason why international athletes can’t participate,” Veron said. “Anyone who says they can’t is either being really cautious or doesn’t understand what can be done with passive income opportunities.”

This approach makes some immigration lawyers, such as Maldonado and Maiorova, nervous.

They say that even meticulous proof that an athlete didn’t perform any work while in the United States could be overlooked by an officer in a consular hearing about future visas or resident status. If the officer misunderstands a passive NIL deal and rules against an athlete, those decisions cannot be appealed or overturned.

“While that may very well fall within the letter of the law, when you go to get a visa at a U.S. consulate abroad the officer interviewing you has broad discretion to deny you,” Maiorova said. “… Are you going to get an immigration officer that’s willing to review your evidence that all this stuff was done while the athlete was at home? They’re not required to review all your evidence. If it doesn’t smell right to them they have the latitude to deny.”

Maldonado and Maiorova have instead turned to trying to help college athletes acquire P-1 visas — the type usually used by professional athletes competing in America — or O-1 visas, reserved for a small group of extraordinary performers. Maldonado successfully helped acquire an O-1 visa for Hansel Enmanuel, who started five games as a freshman at Northwestern State despite having lost his left arm in a childhood accident.

P-1 and O-1 visas are both harder to obtain, and frequently require a more in-depth application, than student visas. The process could cost athletes thousands of dollars, which limits how helpful those options are for the majority of college athletes.

UConn is among a smaller group of schools trying to help its athletes find a safe way to make money while in America. Athletic director David Benedict and David Noble, the director of the university’s Peter J. Werth Institute for Entrepreneurship and Innovation, said the university is developing classes and a minor program of study open to all students that could help athletes take advantage of an exception in the F-1 visa rules known as Curricular Practical Training (CPT). The rule allows international students to earn money through work as long as it includes “training [that] relates directly to the student’s major area of study” and “is an integral part of the school’s established curriculum.”

Noble said they saw NIL as a step in building a company as an entrepreneur. If an athlete has a major — communications, for example — where creating a business around their name, image and likeness would fit into coursework, an international student could make money in a very narrow scope through two courses totaling six credits called professional practice of entrepreneurship the institute offers to all students.

Classes with an option for CPT could be part of a broader minor the Werth Institute hopes to launch next year. Called ‘personal branding entrepreneurship,’ it would encompass social influence and brand engagement — tenets of NIL and also social media.

Noble and Benedict believe the plans they’ve made can help a small number of athletes both make money in the present while preparing them for their futures after sports.

“If you’re a foreign athlete and nobody’s ever heard of you and you have no Instagram and you’re not a comms major, well, you’re probably not supposed to be doing CPT around your name, image and likeness, right,” Noble said. “And building companies in that space wouldn’t be appropriate so they wouldn’t get through the screening process to get into the course.

“So it’s really, that avenue is very limited.”

Even if a student is accepted into the course, applying for CPT is not required, which for international students would then involve approvals from lawyers and the school’s global affairs department. As part of the course, though, they are required to work on things to build either their own brand or the brand of their company.

If an international student athlete were to accomplish the steps: Have an applicable major, be accepted into the class, have a business plan in place and have a likelihood of a deal to happen and is approved for CPT, they would only have a small window to use it in. They can only make those deals and that money while enrolled in the class — and a student can only take classes with CPT options for up to two semesters, having to reapply for CPT in each class, Noble said.

Noble said no UConn athletes have applied for CPT yet although athletes are currently enrolled in the classes, and none might ever do so. The work required, Noble said, is intensive and could be difficult to balance with a student-athlete’s other demands. But CPT is an option for a very small subset of international student athletes to pursue.

Sanogo told ESPN he took workshops through a program at UConn called Championship Labs, and has enrolled in classes through the Werth Institute. It helped him learn how to make money when he returns to his home country.

“[Noble] was like, ‘You can do a camp. People like you and I think we can do a camp in Mali, and they would love to donate,'” Sanogo said. “So that’s what they did.”

The issue of international NIL — and what athletes can and cannot do — resurfaced when UConn coach Dan Hurley was asked about it at a dais in Albany, New York, earlier this month. Hurley said he believed a player the caliber of Sanogo should be able to have similar opportunities to his other teammates, but realized that finding a solution to policies created by a federal government agency can take a long time and is outside the realm of a basketball coach.

“You want to get the director of Homeland Security pissed at me right now,” Hurley said, laughing.

His words hit on the broader issue of NIL and international athletes: How can schools help their athletes in the present without jeopardizing their futures?

It is, in theory, an easily answerable question for Homeland Security, but one they haven’t touched yet. With tournaments that have seen international players like Sanogo and Amoore becoming stars over the past three weeks — it is an issue gaining more attention, too.

An answer may not help Sanogo and Amoore, both college juniors, but it could help push for clarity in the future so the next cycle of international players don’t have to go through the same questions the current ones do. Then they don’t have to just be happy seeing their teammates get money they cannot.

“It’s tough but I mean, I just try not to think about it that much,” said Favour Aire, a Miami freshman center from Nigeria. “I just try not to overthink about NILs because it’s not something I can do something about in my position.

“So I just hoop, just play basketball and let the other stuff figure itself out.”

ESPN’s Shwetha Surendran contributed to this report.