College Athletes’ Status as Employees Puts Student Visas at Risk

Growing momentum toward classification of college athletes as employees of their schools is raising major questions about international students’ continued visa eligibility.

A National Labor Relations Board regional director earlier this month determined for the first time that college athletes can be deemed employees under the National Labor Relations Act. That decision so far is limited to Dartmouth College’s men’s basketball team, but immigration attorneys say the case signals a broader shift that calls for action from both Congress and the immigration agencies.

“It’s a sign of what’s to come,” said Ksenia Maiorova, a partner at Green and Spiegel LLC. “Most legal professionals in this space believe the classification of NCAA student athletes as employees is inevitable.”

Classifying student athletes as employees is at odds with the work limitations of the F-1 student visa—the category most heavily used by the roughly 20,000 international athletes enrolled at US colleges and universities, attorneys say.

The F-1 visa only allows for limited work opportunities, including 20 hours of work on campus or 40 hours when classes aren’t in session. That limit matches the restrictions on weekly athletic activities during a playing season under the NCAA bylaws.

However, the classification of students as employees of the institution they attend gives rise to more fundamental considerations about continued eligibility for the F-1 visa than the number of hours spent working, said Robert Seiger, a partner at Fox Rothschild LLP.

“For lack of a better word, it upends a class of visa holders,” he said. “If you’re taking students and reclassifying them as employees, then in the simplest terms, those athletes are no longer considered to be students and therefore are ineligible for the F-1.”

NIL Model

Dartmouth is appealing the NLRB Region 1 director’s ruling to the board.

The director “correctly decided that members of the Dartmouth Men’s Basketball team have the right to form a union and recognized that international students can be members of labor unions without compromising their immigration status,” SEIU Local 560, the union seeking to represent the players, said in a statement to Bloomberg Law.

“SEIU Local 560 looks forward to negotiating a fair contract for all Dartmouth Men’s Basketball players, regardless of national origin, and calls on Dartmouth to respect the players’ rights,” the union said.

The college declined to comment beyond a statement it issued after the ruling citing a “long and proud history of productive relationships with unions on campus.”

There likely won’t be immediate effects for international Dartmouth players on student visas while the case is appealed. But they face an uncertain future if the ruling sticks, attorneys say.

Foreign college athletes’ unique status was highlighted by the proliferation of name, image, and likeness policies in recent years, including the NCAA’s adoption of broad rules on compensation deals after a loss at the US Supreme Court.

While the new NIL landscape meant significant deals for many star athletes, foreign players for the most part were prevented from cashing in because of their visas’ work restrictions.

To get around those restrictions, some have been able to obtain P-1 visas, a nonimmigrant visa used by professional athletes or others competing at internationally recognized levels of performance. In even rarer circumstances, athletes have sought O-1 visas for individuals with extraordinary ability so they can sign endorsement deals under the NIL framework.

And those visa workarounds likely aren’t feasible on the scale necessary to address issues posed by the reclassification of large numbers of international athletes as employees, said Amy Maldonado, an immigration lawyer who has advised athletes on NIL issues.

“Students don’t have to engage in NIL,” she said. “If every F-1 student athlete is an employee as soon as they get to the United States, that’s a problem.”

Maiorova said classification as employees could have long-term effects for international athletes’ efforts to obtain visas in other categories as well if government officials find they violated their student visa status.

“A consular officer has the ability to deny a visa for any reason they see fit,” she said. “This has potential lasting consequences.”

Wider Landscape

Those implications underline the need for action by Congress and the Department of Homeland Security, Maiorova said.

Legislation (S. 2554, H.R. 4948) introduced by Sen. Chris Murphy (D-Conn.) and Rep. Lori Trahan (D-Mass.), would allow international athletes to sign the same NIL deals as their US teammates without having their F-1 visa status affected—even in the case that college athletes are classified as employees of their schools or athletic associations.

Both Maldonado and Maiorova advised on the drafting of that measure, which hasn’t advanced in either chamber.

US Citizenship and Immigration Services referred questions to Immigration and Customs Enforcement, the DHS subagency that manages the student and exchange visitor program.

The Student and Exchange Visitor Program at ICE is monitoring legislation and court rulings on college athletes, said Page Hughes, a spokesperson for the agency. ICE and partner agencies like USCIS remain “actively engaged in discussions on this topic. We would not comment on any potential changes to SEVP,” she said.

Fanta Aw, executive director and CEO of NAFSA: Association of International Educators, said educators hope to see the agency weigh in soon on employment questions involving student visas.

“We’ve seen this before when graduate students have unionized on many campuses and our international students have been part of those programs,” she said. “They have been able to enjoy the same rights as other students who are unionizing.”

The employment status of college athletes will be tested further by two other pending cases: one before an NLRB administrative law judge concerning unionization efforts at the University of Southern California and another in the US Court of Appeals for the Third Circuit involving compensation under the Fair Labor Standards Act.

The Third Circuit case could apply even more broadly than the one before the board, said David Weber, a law professor at Creighton University. That’s because NLRB rulings are binding on the teams or bargaining groups that brought an action and the agency does not have authority over public employers, he said. The FLSA case would affect all institutions covered by the Third Circuit and create an appeals court split with previous rulings in the Seventh Circuit and Ninth Circuit.

“It’s probably premature to say” what precedent the Dartmouth case will set, Weber said.

“But we’ve already seen a pretty strong stance by the general counsel at NLRB stating that they believe college athletes fall within the definition of employees under the NLRA,” he said. “If we have multiple decisions along those lines, that starts to become pretty significant.”