blue in dc

December 20th, 2021 at 9:03 PM ^

“The NCAA recently paved the way for collegiate athletes to monetize their names, images, and likenesses. But while American college athletes sign lucrative “NIL” (name, image, and likeness) deals, American immigration laws prevent their international counterparts from doing the same. “

https://www.natlawreview.com/article/international-student-athletes-shut-out-nil-deals

Joined: 01/22/2011

MGoPoints: 20401

MadMatt

December 20th, 2021 at 10:12 PM ^

OK, I read the article at the link.  (BTW, I'm Michigan Law '87.)  It's from a reputable source.  Assuming the author quoted the authorities correctly, yes, this is a potential U.S. Student Visa issue, and not an NCAA issue.

However, I would urge Mr. Ojabo to take advantage of the NCAA rule that permits him to receive legal advice from the University on this matter.  I question whether an NIL deal is "employment" within the meaning of the Student Visa regulations; those regulations only restrict the kind of "employment" of a Visa recipient while in the United States.  My understanding is that someone who gives an NIL license is not an employee of license receiver for any purpose, e.g. employment regulations such as minimum wage or workers' comp.  An NIL is a product and at most, you could say a player granting a license to sell his jersey likeness is comparable to an independent candle-maker selling his wares at an art fair.  (This could get complicated if Visa regulations do restrict people from setting up shop as independent business, e.g. plumbers, carpenters, etc, which is why I recommend talking to someone who knows this stuff.)

However, even if he can't deal with the usual, U.S. based companies that sell licensed merchandise, what would stop him from doing an NIL deal with a company in his native U.K.?  Yes, that company would have to deal with shipping and import regulations to sell jerseys in the U.S. (where the demand for the product would be), but it seems this is doable.

Joined: 11/06/2013

MGoPoints: 13937

BluePhins

December 20th, 2021 at 10:26 PM ^

I love this attitude, and this thinking creates a foundation for possibilities. Especially in this micro wild west of NIL deals, these are the things that need to be pushed. All of these players, coaches, schools and boosters pushing in every direction to figure out what works, and to be 1st. It has a very "Plant your flag on your land and see who stops you" feel.

Joined: 04/25/2013

MGoPoints: 1572

J. Redux

December 22nd, 2021 at 12:30 AM ^

I agree that the UK option would likely work, provided that the actual work was performed in the UK.

However, I don't think that there's any question that an NIL deal constitutes employment under the letter of the law, and that as an F-1 visa holder, to accept employment under it would be a violation of his visa.  These NIL deals include things like personal appearances, filming commercials, etc. -- all, undoubtedly, employment within the meaning of the law.

Even if you are right about the nature of employment being more akin to a skilled tradesman than a wage employee, it's irrelevant for the purposes of immigration law. Self-employment is still considered employment -- he'd also be prohibited from accepting gig economy jobs, for example. FWIW, the closest thing I can find to a business visa allowing self-employment would be the O visa -- which, incidentally, is probably what he'd need if he wants to pursue an NFL career.  (An O-1A visa covers science, eduction, business, or athletics; an O-1B visa covers the arts; in either case, you need to be adjudged of extraordinary ability).  I don't think the P visa is applicable; that's used for one specific athletic competition, or perhaps a series of them; I don't think he'd be able to stick around and go to school in the offseason.

My suggestion would be that if there's someone who wants to give him an NIL deal, Michigan should contact their immigration lawyers to see if an adjustment of status to O would be a possibility. I don't see any reason that he could not attend school while on an O visa, provided that he maintained his employment; however, he can't apply for an O visa himself. He'd need an agent, or the interested NIL company would have to apply.

Source: No law degree, but I've interacted with USCIS more than once. :)

FWIW, Congress should absolutely amend the law to allow F visa recipients to earn NIL deals -- and just expand their eligibility for employment in general, provided that they're actually attending a real university and progressing toward a degree.  (The F visa class has been scrutinized quite a bit in the past as it tends to attract quite a bit of fraud -- there have been a few "schools" that were nothing but an office somewhere, devoted to cranking out F visa applicants for people willing to pay for them).

Joined: 10/15/2020

MGoPoints: 21519

Dr. Venture

December 20th, 2021 at 7:26 PM ^

That’s not really accurate.
 

Yes, international students are allowed on campus employment, but as he is not “employed” by the university this doesn’t fall underneath the current USCIS regulations regarding his visa status. Maybe down the road the immigration regulations will change, but that is opening up a giant can of worms as the number of international students who are athletes is incredibly low. I’d be surprised to see any updates on this anytime soon as this opens up a can of worms for regarding international students and unauthorized employment. 

Joined: 10/05/2014

MGoPoints: 320

DMack

December 21st, 2021 at 1:50 PM ^

This law is terrible as it relates to NIL for international students. It seems to me the university might want to get ahead of this and assemble a team of legal minds to either challenge the law or find a viable work around. Doing so might put us in the drivers seat for recruiting and makes the university a more attractive option to consider. 

The university might also want to consider hiring him as a PT employee (sales), and selling his apparel with the understanding that he would gain a commission on what he sells. When it's the new frontier, it always looks like a huge undertaking but he's at one of the greatest schools on the planet and I'm sure the legal minds around campus can fix this, because it's not enough to say he will be a millionaire in a year. There are other athletes, and potential athletes who are affected and they may base their decision to commit on an antiquated rule. Because the NIL issue is new, I'm sure the legislative intent of the immigration law wasn't implemented with the purpose of having this effect. I hope it gets fixed.

Joined: 06/22/2015

MGoPoints: 2743

oriental andrew

December 21st, 2021 at 10:49 AM ^

And here is an article from an actual law-talking source::

https://www.natlawreview.com/article/international-student-athletes-shut-out-nil-deals

For international students to study in the United States, they must apply for visas through the U.S. Department of State. Generally, international student athletes enter the United States with an F-1 visa. 

To maintain status under an F-1 visa, a student may engage in paid work under one of four scenarios: 1) on-campus employment, 2) off-campus employment for economic hardship, 3) in curricular practical training, or 4) in optional practical training. Under current regulations, these earning options are intentionally limited. 

Accordingly, the type of NIL sponsorship deals now available to NCAA athletes are not available to F-1 visa holders. In fact, by earning income through an NIL deal, an F-1 student visa holder could face a litany of troubles, including deportation. 

And some law-talking dude on a Business of College Sports podcast - "Rob [Seiger, a partner in Archer & Greiner P.C.’s Sports Law Group,] represents college and university athletic departments in immigration and related compliance issues for their foreign athletes."

https://businessofcollegesports.com/podcast/advice-for-international-student-athletes-on-nil/

Joined: 06/30/2008

MGoPoints: 56208

Indy Pete - Go Blue

December 20th, 2021 at 7:04 PM ^

That nfl contract will be a nice complement to his full scholarship at Michigan. Ojabo is doing just fine.

edit: if he wants the degree and a chance for fair compensation relative to his peers for next year - this is a huge blow to him and potentially  the team. 

Joined: 01/23/2018

MGoPoints: 157349

MGoStrength

December 20th, 2021 at 7:35 PM ^

Sheesh, well he's about to get paid anyways, but shame on NCAA.  JH will probably give him part of his bonus :)

Joined: 07/29/2010

MGoPoints: 20002

Hurricane

December 20th, 2021 at 7:53 PM ^

Crazy idea... What if someone just buys it off of him and pays cash or trades a brand new car for the jersey? This could revolutionize the game. The buyer or an intermediary, presumably a man, could deliver the payment in a bag. 

Joined: 02/17/2011

MGoPoints: 622

santy

December 20th, 2021 at 9:33 PM ^

I was an international student at UM and worked for my professor under on campus employment. 

 

It's not an NIL/NCAA issue, it is, as some have pointed out a U.S. visa issue.

I'm pretty sure Ojabo is here on an F-1 visa which means that he is limited to on-campus employment. Other forms of employment would need to contribute to your degree. NIL does not come under this.

Joined: 05/27/2011

MGoPoints: 295

Dailysportseditor

December 20th, 2021 at 11:34 PM ^

I beg to differ.  As a retired CA/NY labor and employment lawyer who has a JD and also an LLM specialty in Labor/Employment Law from NYU Law School, I say bullshit to the conclusion that merely licensing one’s name, image or likeness creates an employment relationship.  Only if the licensing agreement additionally specifically requires the licensor to also perform specified duties for the benefit of the licensee or others (e.g., appearances at events or in commercials for the licensee) would an employment relationship be created.  Think of the relationship created when Walt Disney licenses the image of Mickey Mouse to t shirt maker or one of the professional sports players associations licenses player names and images to a sports card company.  Those licenses do not create employment relationships between the licensee and the licensor/owner of THE NIL rights.  Why should foreign student NIL- owning athletes be treated differently?  

Joined: 01/14/2012

MGoPoints: 452

Jon06

December 21st, 2021 at 5:34 AM ^

Presumably, if he's being treated differently, it's because Michigan's General Counsel's Office disagrees with your interpretation. So, as you know, he should sue whoever he can to get this fixed. As an MGoBlog member, you should of course help him find pro bono legal representation to do so.

Joined: 09/19/2009

MGoPoints: 15462