One Group Of Student-Athletes Is Conspicuously Absent From NIL Deals

Nouredin Nouili woke up on July 1 nervous and excited.

It was the first day in the 115-year history of the NCAA that athletes would be afforded the same fundamental rights as their college peers: the ability to monetize their names, images and likenesses. Overnight, nearly half a million athletes across all 50 states could finally protect their intellectual property and accept business opportunities. It was suddenly open season for appearance fees, autograph sessions, endorsements and partnerships.

Nouili is a sophomore left guard at the University of Nebraska, a college football program famously beloved by its fan base. Nouili is also an international college student who plays home games some 4,700 miles from his family in Germany. “Germany is very similar to Nebraska,” he said. “A similar sense of people. A similar sense of support.”

As Nouili scrolled through his phone that July morning, he saw his teammates post about their newfound freedom and freshly inked contracts, many of which were made official before the sun had risen in Lincoln. Some had landed promotional deals with dog-training academies and fast-food restaurants. Others had launched apparel lines and podcasts. A sports agency announced it would represent a Husker wide receiver who had yet to catch a pass as a member of the team. “It was exciting and new,” Nouili recalled. “I thought, ‘Now I’m actually able to do stuff for my family.’”

While his teammates scored on the first day of the NIL era, Nouili planned to do the same. Earlier in the week, he had posted on his Facebook page that he was open to these new opportunities. A few deals began to materialize, including a few “pretty big ones,” Nouili said. But before any of them were made official, a sports agency representative in Germany alerted Nouili of a key detail: These contracts would likely violate the terms of his F-1 student visa. Nouili immediately took the message to the university’s international office, where it was confirmed. The only way for him to participate in the growing NIL economy would be to do so from outside of the U.S.  

“Our compliance office does an amazing job, but nobody — anywhere — knew anything about this,” Nouili said. “Literally no one thought about, ‘Hey, like, this might actually destroy people’s lives.’ Like, some people might be sent home because of the rules that they don’t know. 

“I’m 20, you know? Me being safe started with somebody who I personally don’t really know. On Facebook.”

By the time July 1 rolled around, Nicole Kavlick was exhausted.

As associate athletics director for compliance at Saint Mary’s College, Kavlick had spent most of the summer working on an NIL policy based on California Senate Bill 206, which would become law on Jan. 1, 2022. But that all changed when the Supreme Court got involved and schools around the country scrambled to reassess an imminent deadline.

Kavlick — a “true compliance person” — prefers a defined framework when enacting policy. There was no such framework here, as the NCAA’s lack of centralized leadership led to the hurried rollout of NIL, which University of Illinois Athletic Director Josh Whitman described as “the most dramatic, meaningful change to come to the collegiate model since the adoption of athletic scholarships.”

On June 25, four days after the Supreme Court’s ruling, Kavlick said she received an email from the West Coast Conference office with three options that the NCAA was considering. End-of-day feedback was requested. Some of the proposals conflicted with California’s proposed state law, Kavlick said, and the situation was made trickier by the WCC representing member schools from states with differing effective dates of legislation.

“There were mixed feelings in the conference responses as to what we should do,” Kavlick said. “But we could have moved forward with adopting the NCAA proposal and then at least we would still have had a few months to figure out what we were going to do with California state law.”

Kavlick filed Saint Mary’s recommendations, but on the following Monday, those plans were scrapped entirely. 

“I had about five business hours left in my day to come up with an entirely new policy,” Kavlick recalled. “That’s all I did on June 30, the entire day: create a policy from scratch.” Of course, that expedited situation Kavlick and her peers were forced into meant some of the finer details — like profit from jersey sales — either went unmentioned or overlooked as further questions were simply redirected to state and federal government officials. 

Compliance offices have been left to shoulder much of the NIL-related baggage. “I think by and large, they’re doing a great job with education,” said Kamron Cox, the coordinator of the University of Illinois’s NIL INFLUENCE program. “But we’re all just living in this really big gray area.”

Though Saint Mary’s is known for its Australian-fueled men’s basketball team, which has appeared in the AP Top 25 in three of the previous five seasons, it’s a small school, with an undergraduate enrollment of fewer than 3,000. Kavlick said that unlike larger athletic departments around the country, Saint Mary’s chose not to initially sign a contract with a third-party company like Opendorse or INFLCR, which work in tandem with compliance departments and stay abreast of NIL policy updates.⁵³ 

All NIL deals are required to be disclosed to university compliance departments, and Kavlick hasn’t seen many. As of early October, a total of 10 NIL deals across all sports had crossed her desk. (Ohio State, by comparison, reviewed 400 through Sept. 30, or around four per day. Cox told FiveThirtyEight that the University of Illinois has reviewed approximately 150.) “Part of that has to do with the fact that we have so many international student-athletes,” Kavlick said. “And our international student office has said, ‘You can of course deal in your own home country. But here you don’t want to jeopardize your visa. So stay away and just be careful about doing anything.’”

As is the case at many colleges and universities, international athletes at Saint Mary’s are referred to the Center for International Programs, where liaisons field questions. “This was a big portion of our beginning-of-year-rules education,” Kavlick said. “I would say NIL took up about 50 percent of the meeting.” For good reason: U.S. visa laws are complicated. 

To study in the U.S., international students have to apply for visas through the U.S. Department of State. A majority of international athletes, like Nouili, fall under the F-1 category. Internationally recognized athletes⁵⁴ fall under P-1A. Each classification comes with its own set of rules and regulations, with far more legal verbiage dedicated to what isn’t permissible than what is.

These intricate distinctions affect an increasingly large pool of athletes: In each year from 2013 to 2018, the NCAA reported an increased rate of international athlete participation at the Division I level, with approximately 12.4 percent of athletes identified as international in 2019. In total, there are more than 20,000 active international athletes at NCAA member institutions across its three divisions, according to the most recent NCAA data.

In order to maintain the status of an F-1 visa, students must be enrolled full-time, which at most undergraduate programs means taking at least 12 credit hours per semester. These students are eligible for four types of paid work: on campus, off campus for economic hardship, curricular practical training and optional practical training. Curriculum practical training is essentially a paid internship specific to the student’s area of study. 

Work is limited to 20 hours per week when school is in session — that is, if the college athlete can shoehorn work hours into a schedule that, in addition to academics, requires many to commit more than 40 hours per week to their respective sport.

As its name suggests, on-campus employment — like a barista at a student union or a cashier at a campus bookstore — is only permissible on the campus at which the student is enrolled. Off-campus employment — only available to students who have completed at least a full academic year in their program of study — must be qualified through the Department of Homeland Security.

The key distinction, Cox said, is not simply whether enrolled athletes are international but whether they hold a student visa. Students who hold green cards, making them permanently able to live and work within the U.S., are able to sign NIL deals. (That’s why University of Illinois All-American Kofi Cockburn, a Jamaica native and one of college basketball’s most marketable players, is able to monetize his NIL, though he was suspended to start this season because he started making money just slightly before the NCAA allowed him to.) But thousands of other international athletes aren’t, largely due to the ambiguity of the interpretation of these restrictions. 

What isn’t ambiguous is how serious the potential consequences are for what amounts to a federal offense, which might result in deportation. As Cox succinctly put it, “You don’t want to see the executive branch of the federal government.” 

“I’ve told our guys before that this visa issue is serious,” he continued. “Particularly the Department of Homeland Security, United States Citizenship and Immigration Services. Like, they’re worried about borders and terrorism, and they’re — because of what their world is — more likely to take a hard-line approach to things. And we’re afraid of that.”

The violation of visa rules comes with consequences down the road for those who are interested in remaining in the U.S., particularly those pursuing a green card. “If you get caught, you’re not just having to sit out a match. This is serious,” said former Nebraska all-conference tennis player Chris Aumueller, who is now the founder and CEO of FanWord, an athlete storytelling and branding company, which partners with athletic departments to maximize NIL deals. “It’s a whole different ball game.”

With so much to lose, it is no surprise that when two international athletes approached Kavlick about NIL opportunities, neither ended up going through with them after learning of the legal runaround and potential consequences. “It’s just not worth it,” Nouili said.

However, there is one way that international athletes can participate in the growing NIL economy. All that an athlete like Nouili would need to do to safely profit from his NIL the way his domestic peers can is book a flight back to where he or she came from.

Katja Pavicevic is a junior at the University of California, San Diego, who hasn’t yet experienced a “normal” year of college.

As a freshman swimmer, the Toronto native blossomed into an All-American in two events and an honorable mention All-American in two more. But then the pandemic hit. She hasn’t had in-person classes since. An only child, Pavicevic said the nine months in which she was unable to return home due to COVID-19 travel restrictions were some of the most difficult of her life. “It hasn’t gone according to plan,” she said of her college experience.

July 1 was not only the official start date of the NIL era, but also the start of UCSD’s four-year reclassification period to Division I as the newest member of the Big West Conference. Athletes were told that the jump to DI would lead to more on-campus resources and opportunities for exposure. More exposure leads to more marketability. “We were promised a lot,” Pavicevic said, “but so far we haven’t seen those things.”

Pavicevic found an available retail position at a clothing store she liked. An employee told her she’d be a great fit and to let them know if she wanted to apply. But when Pavicevic brought up the possibility in a meeting with her liaison at the university’s international office, the conversation was quickly shut down: The off-campus job wasn’t directly tied to global health, her field of study. “Because of COVID, it’s been difficult to find a position anywhere in medicine since it’s not safe to onboard new people,” she said. “It’s expensive to be a student-athlete and to live in California. I really wanted to get a job here to help my family out.”

Her story isn’t uncommon. Aumueller had a similar experience with an internship that fell through because he was ineligible to be compensated. “There would have been no way I would have found 20 hours a week to dedicate to a job,” he said. 

Like Nouili, Pavicevic was excited about using NIL to alleviate some of the costs associated with college. But also like Nouili, Pavicevic has a nonimmigrant F-1 visa and was unable to take advantage.

What was most difficult to process was the fact that she put the same amount of time and effort into the sport as her teammates did, Pavicevic said. They donned the same cap and school colors. They won and lost together. “I pay to come here, and I still can’t make money off my name, even if some company wants to use it,” Pavicevic said. “It’s just disheartening and disappointing.”

In order to be eligible to compete this year, UCSD athletes had to take part in an online NIL seminar. It didn’t mention international athletes a single time, Pavicevic said.

“When you look for answers, it’s almost like the situation is designed to make you want to give up before you even start looking. It was almost like, ‘Why bother? I know I’m not going to get a straight answer,’” Pavicevic said. “The bureaucracy is such a barrier. At the end of the day, we’re all here competing for an American school. I didn’t take anyone’s place to come here. I earned my place just like everyone else on the team. And it sucked to feel like I was an afterthought.”

For most in college sports, July 1 represented a monumental day that was years in the making, the moment when money legally began to trickle to the labor that collectively built a billion-dollar enterprise. But for some, the day meant something entirely different. Countless international athletes were left to figure out a federal ruling in a foreign land. “Nothing hurts me in this job more than when I have to say, ‘Hey, we’ve got this great, big, new party. Everything’s going to be awesome. But none for you,’” Cox said. “It doesn’t feel right.”

Future iterations of NIL policy will likely address the rights of international students, said player advocate attorney Tim Nevius. But as international athletes wait in the wings, real, life-changing money is being forfeited. Opendorse, an athlete marketing program that assists more than 100 Division I programs with NIL opportunities, estimated that the average Division I college athlete generated $391 from July 1 through Sept. 30.⁵⁵

With over 20,000 international athletes, Opendorse’s estimate equates to as much as $7.82 million in voided potential earnings.⁵⁶ That figure also fails to account for the global marketability of many of these athletes, some of whom have played for their home countries in international competition. 

“When it comes to brand monetization, it’s about creating a unique brand that people talk about and that people know and want to affiliate with,” Aumueller said. “If you’re international, you instantly have a differentiator. International athletes have a unique advantage that could tremendously support a local or national business that’s impossible to mimic.”

A great case study is the Nebraska men’s and women’s basketball teams. On the men’s side, the most-followed player on social media isn’t Bryce McGowens, the highest-ranked recruit in program history and a potential lottery selection in the 2022 NBA draft. It’s Keisei Tominaga, who competed for his home country of Japan in 3-on-3 basketball at the Tokyo Olympics and has a combined 64,000-plus followers on his Instagram and Twitter profiles. On the women’s team, it’s Jaz Shelley of Australia, who has a combined 37,000 followers and has just taken the court for the Huskers for the first time.

International students are missing out on building their brands, but their schools are missing out too, said Zach Soskin, the co-founder of Voltage Management, an athlete marketing firm. “These schools can absolutely increase the brand in new countries and markets,” Soskin said. “All of a sudden, maybe more kids apply from that country to that school or the team picks up an international sponsor. Athletes can be such an asset and resource for schools that you hope they understand that it’s in their best interest to help them navigate this environment.”

In many sports, athletes appear on television nearly every week and draw the attention of family and friends to the program. In the one season that Kobe Paras, the son of Philippine Basketball Association standout Benjie Paras, was a member of the Creighton basketball team, total followers on the team Twitter account spiked by more than 71 percent. Paras played a total of 70 minutes. “He was a rock star,” Soskin recalled. “That matters to these programs.” 

For a number of athletes, in particular female athletes in major sports, college is a time of peak earning potential. “If you’re playing for the Nebraska volleyball team, that’s a better platform than you’ll ever have again unless you’re a multi-time gold medalist,” Soskin said.

Instead, international athletes — who already face heightened challenges on college campuses as they navigate everything from language to cultural barriers — are being told to watch as their domestic teammates are able to finally monetize their mere existence. “I believe these policies were designed to be inclusive,” Aumueller said. “But they nonetheless came out to be exclusive.” 

Nouili made his first start of his career on the offensive line in the Huskers’ early October homecoming victory over Northwestern. That prime-time tilt meant his family gathered around the TV for a 1:30 a.m. kickoff. “Good thing it was on a Sunday back home,” he said.

If Nouili made a dollar off his name, image or likeness, he would put it toward a plane ticket home. Not that he isn’t grateful for his experience playing Power Five college football — far from it. “There’s no better place to be cherished as an athlete,” Nouili said of Nebraska. “It doesn’t matter what sport; there are fans everywhere that are going to recognize you.”

This fall, he saw his family for the first time since he became an exchange student nearly three years ago. “Flights are expensive, you know?” he said. “So I think any money would definitely go into trying to go back home.”

But Nouili can’t reap those rewards right now, though his teammates can. And that’s the most distressing part, he said — that others were granted more chances and possibilities. Isn’t that what coming to the U.S. was all about? “I’m trying to make my own life, my own way,” he said. “But to be a teammate, you have to know that it’s not all about you.” 

Shortly after he was made aware of his situation, Nouili reached out to athletes at other schools, including one who had signed up to be a Barstool athlete. “I told him, ‘Hey, you’re not allowed to do any of that stuff. Be sure to drop it. Hopefully nobody saw it. Just don’t put your eligibility on the line.’ Hopefully it changes for the future generation of international players. I know I’m probably not going to be around when that happens. Look how long it took to get NIL, right? Chances of quick changes aren’t high.”

For college athletes around the U.S., July 1 was a watershed moment. Thousands of domestic athletes helped usher in the NIL era, the culmination of many years of advocacy work. But the thousands of athletes who came to the U.S. under the premise of equal opportunity had a much different experience as they were asked to navigate legal jargon and red tape. A patchwork approach made at the 11th hour again created division during a moment when unity of opportunity was the desired outcome.

Watch: https://abcnews.go.com/fivethirtyeight/video/chaotic-fictional-football-coach-fivethirtyeight-74531599