NIL is nil for international students: lessons to learn from Canada’s approach to international students’ off-campus work limits

In what has been a financially prolific year for student-athletes since the Supreme Court leveed its name, image, and likeness (“NIL”) ruling against the NCAA, settling tides have revealed significant gaps in the coverage of who can be compensated for their likeness. Specifically, international student-athletes attending school on visas who are explicitly barred from working and studying while playing in the United States.

Among the more notable of this bunch is University of Kentucky basketball star Oscar Tshiebwe, a Democratic Republic of the Congo native and the reigning Naismith Men’s College Player of the Year. Tshiebwe and others have proved their entrepreneurial prowess in discovering ways in which they can circumvent the United States’ archaic visa regulations that have not been updated since the 1980s.

While playing preseason exhibition games in the Bahamas, Tshiebwe found himself beyond the jurisdiction of his visa’s restrictions and able to profit off his likeness. In addition to his basketball responsibilities, Tshiebwe appeared in radio and TV commercials and signed autographs on trading cards among his other promotional tasks. It was estimated that this weeklong trip would earn the basketball phenom approximately $500,000. Back in the United States, though international student-athletes are prohibited from appearing in any promotional content, many of them have taken advantage of a loophole that allows them to license their NIL in return for compensation when competing internationally. International student-athletes can promote themselves via merchandise to legally skirt around their visa restrictions. Ultimately, the most definitive path to financial gain for athletic ability for this often-forgotten group is to pursue an extraordinary ability visa, one that many international athletes secure in their professional careers.

Canada has taken a different approach, however, to the limits it places on its international student population and their ability to work. Recently, Canadian Minister of Immigration, Refugees, and Citizenship, the Honourable Sean Fraser, announced the temporary lifting of the 20-hour-per-week cap on the number of hours that eligible post-secondary students are allowed to work off-campus while class is in session. In doing so, international students will see greater opportunity to gain valuable work experience and financially support themselves while maintaining their student status.

The most significant difference between the Canadian and American approach to international student work is the absolute permission for those in Canada to work off-campus whereas those in the United States may not work off-campus during the first academic year and are subject to strict conditions and restrictions for any academic year following. Now, with Canada’s recent changes, international students stand to make much more significant financial gains than their counterparts in the United States irrespective of their status as athletes.

It is imperative then, having regard for the actions of their neighbours to the North, that the United States amend their off-campus work limits for its international students so that the population, and specifically student-athletes, can pursue financial gain. As NIL rights continue to level the playing field among athletes and provide earning parity between schools, it is imperative that American schools aim to do the same as Canada has done; until then, the earning situation for student athletes will remain far from an equal and equitable set-up for student-athlete compensation, as the international population among them still faces significant obstacles to profiting off of their NIL.

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