In October of last year, Judge Claudia Wilken of the Northern District of California granted preliminary approval of a settlement in House v. N.C.A.A. While much has been covered about the sum of the settlement (roughly $2.8 billion) and how revenue sharing will work between the N.C.A.A. and college athletes, there are still ongoing discussions about the details of the settlement. One detail in particular will be the challenges presented to international athletes.

The Settlement

A quick refresher on the major points of the preliminary settlement:

· The settlement would establish $2.78 billion in retroactive payments for former college- athletes going back to 2016. These payments will not come from the school’s directly, but as part of the settlement process.

· Collegiate athletic departments can opt into revenue sharing directly with past and present athletes beginning at over $20 million per school.

· The N.C.A.A. and power conferences will be allowed to form a “designated enforcement agency” focused on eliminating booster led NIL collectives “pay-for-play” payments.

International Athletes

As noted by Amanda Christovich in Front Office Sports, if college-athletes on student visas accept House v. N.C.A.A. payments, they could be in violation of U.S. immigration laws.

In 2018, there were about 25,000 student-athletes from outside of the United States, with that number likely having grown since . Most students on visas are considered “F class.” They can be paid for work, but there are restrictions. For example, the work must be limited to a certain number of hours, be somehow connected to their study, and income must be considered passive income.

The House settlement would have schools hand out payments to the entire athletic department, making it difficult for international athletes to avoid or reject them. These payments could then violate the worker regulations attached to student visas, risking the student-athletes visa entirely.

Schools involved may also become unintended victims to consequences caused by the settlement agreement. It is illegal to pay workers who are unauthorized to work in the United States under U.S. Immigration and Customs laws. Any payment by a school to an international athlete could violate these laws and hypothetically create a confrontation between I.C.E. and the school.  

Possible Routes

While a clear-cut answer has yet to come to light, there are a few options for this sticky situation:

·   International student-athletes on visas could attempt to refuse payments.

· They can attempt work-arounds similar to former Kentucky Basketball player Oscar Tshiebwe, who participated in NIL payments while in the Bahamas and off U.S. soil.

·  They can try to attain a different type of visa, with less strict regulations around payments.

· The school can establish a trust that doles out payments at an amount more in accord with visa regulations.

Schools and international athletes will also likely be awaiting guidance from the Department of Homeland Security or Congress, who can release guidelines on payments relating to student visas or create a law addressing the issue, respectively. Of course, a final approved settlement can also address this issue.

Still, without intervention or guidance on the issue, the House settlement may ironically be setting up more legal challenges if international athletes begin losing their visa status because of these payments.

Michael Moore is a graduate of New York Law School and former member of the school’s Sports Law Society. When he’s not working at the New York Law Department he’s thinking about the intersection of sports and law and when the Knicks or Rangers will finally win a championship.