By and large, media coverage of the struggle between the NCAA, universities, student athletes and other stakeholders consistently fails to account for one of the key constituencies caught in the middle of this argument: F-1 student athletes. It is not clear that players, labor activists and others clamoring for payment to student-athletes—in the Dartmouth College and Northwestern University cases, by being deemed employees who, by extension, may unionize to collectively bargain—have meaningfully grappled with the impact of these efforts on the international student athletes present in the United States on F-1 Visas. In fact, a review of filings and transcripts related to both Northwestern University cases decided in 2014 and 2015 show no mention of F-1 Visas or international student athletes. In this case, the failure to mention international students on F-1 Visas makes sense because it appears the Northwestern University football team did not field any foreign-born players on its roster in 2013. However, with international student athletes making up approximately 13% of all Division I and II players, the impact these efforts have on more than 1 out of every 10 athletes can no longer be ignored.
In this article, we will discuss not only the Dartmouth College Decision and its place within the wider context of this fraught issue, but also how this decision and other efforts impact F-1 international student athletes who possess extremely limited employment opportunities to work without violating their F-1 status and exposing themselves to the risk of being removed from the United States.
The Dartmouth College Decision
On September 13, 2023, the Dartmouth College men’s basketball team initiated this matter by submitting a Representation Petition—known as an RC Petition—seeking recognition for all members of the men’s basketball team, not including the team’s managers and supervisors, as the bargaining unit Service Employees International Union, Local 560. On February 5, 2024, following several hearings and briefs filed by both the athletes and the university, the NLRB issued its decision that all members of the men’s basketball team were employees under the NLRA.
As was the case with Northwestern in 2014, the NLRB’s ruling in the Dartmouth College decision rested on the “significant control” exercised over the players in question; but, unlike Northwestern, this time the NLRB found that this “significant control” exercised over the players in fulfilling their obligations to the team was in Dartmouth College’s interests, and, even if they did not receive athletic scholarships, these services in the College’s interests were in exchange for compensation such as financial aid and/or fringe benefits including but not limited to “early read” for admission and tickets to games. In addition, the NLRB cited the fact that Dartmouth College customarily contacted the student athletes because of their abilities on the court—and not in the classroom—as evidence that Dartmouth College was, in effect, recruiting workers to perform a service with financial aid and/or the aforementioned benefits serving as consideration. In sum, the NLRB has framed the relationship between school and student athlete to be inherently transactional and “that employee status will be found where there is a rudimentary economic relationship, actual or anticipated, between employee and employer.” And in so doing, and in response to an argument it suggests Dartmouth College has “suggest[ed], tangentially,” the NLRB quickly dispatched any potential negative impact to or implication for international students.
The Problem with Making F-1 Student Athletes Automatic Employees of their University
If nothing else, we can applaud Dartmouth College for acknowledging the existence of international student athletes and for considering the negative impact of deeming international student athletes de facto university employees. The NLRB labeling this acknowledgement as tangential may be somewhat harsh, but it is not entirely inaccurate: Dartmouth College designated this issue as an “Additional Policy Consideration” that takes up approximately two pages of its Post-Hearing Brief, after the College had already addressed each of the arguments offered in favor of classifying the student athletes as employees. These negative implications illustrate that while certain stakeholders may view the Dartmouth College decision as a massive victory, it is not only a loss from the schools’ perspective, but it is also quite fraught, and possibly a net-negative, for most international student athletes.
The source of this anxiety is that international student athletes, by and large, are present in the United States on F-1 Visas, and F-1 Visas carry strict limitations on students’ ability to work while in school. Certain international student athletes may be sufficiently well-known or accomplished to garner an O-1A Visa as an athlete of extraordinary ability, or a P-1A Visa as an internationally recognized athlete. These foreign national student athletes are permitted to work in their sport of choice in the United States and therefore do not face the same legal jeopardy introduced by the Dartmouth College decision. F-1 international student athletes, on the other hand, do not have this luxury. Consequently, even though an international student athlete’s chief motivation for attending school may be to play college sports, their ability to work is subject to the same rules as someone coming from abroad to study engineering, political science or another field.
Below, we will discuss why certain forms for obtaining work authorization as an F-1 Visa holder are unworkable for most, if not all, international student athletes, potential solutions and additional issues to consider.
Optional and/or Curricular Practical Training
In reverse chronological order, an F-1 Visa holder may have access to up to one year of post-graduate work authorization pursuant called Optional Practical Training or OPT. An F-1 Visa holder can also seek OPT work authorization during school breaks. Likewise, graduates with degrees in designated STEM fields may be able to access an additional twenty-four months of work authorization. OPT’s inability to solve this problem is manifold—the timing of receiving work authorization, the need for the work to be related to the student’s degree excluding anyone besides sports-related majors, the maximum three years of work authorization per level of education is less than the four years of athletic eligibility available to the international student athletes —and, as presently constituted, does not merit serious consideration. Likewise, OPT’s cousin, Curricular Practical Training—or, CPT—is equally unworkable because it would require universities to deem playing a college sport and getting paid to be “an integral part of an established curriculum,” and involves “sponsoring employers through cooperative agreements with the school,” and can only be issued to students who have been “enrolled on a full-time basis . . . for one full academic year.” There are F-1 Programs that issue what is called “Day 1 CPT”—which is to say, CPT that commences upon matriculation without the one-year delay. However, these institutions are few and far between, and almost always (if not 100% of the time) not fielding collegiate-level sports teams. As such, international student athletes with work CPT or OPT work authorization would need to wait one (1) year to actually play, thereby transporting F-1 Visa holders back in time to when college freshmen were not allowed to participate in varsity sports. Accordingly, without legislative action or regulatory amendments to these programs, neither form of Practical Training is a viable option.
Off-Campus Employment due to Severe Economic Hardship
In addition, Federal Regulations offer F-1 Visa holders exceedingly limited access to off-campus employment: namely, when “other employment opportunities are not available or are otherwise insufficient” and the international student has suffered “severe economic hardship caused by unforeseen circumstances beyond the student’s control.” Qualified F-1 Visa holders may work no more than twenty hours per week—but full-time when school is not in session—and no matter the circumstances, cannot seek this form of work authorization before they have been enrolled for twelve months. As for the qualifying circumstances themselves, the regulations provide the following nonexhaustive list of unfortunate events that merit special treatment:
[L]oss of financial aid or on-campus employment without fault on the part of the student, substantial fluctuations in the value of currency or exchange rate, inordinate increases in tuition and/or living costs, unexpected changes in the financial condition of the student’s source of support, medical bills, or other substantial and unexpected expenses.”
As with the above-described OPT and CPT, this route to employment authorization requires the international student athlete to have been enrolled for at least one year, which means F-1 Visa holders would again be forced to sit-out their first year of eligibility. Likewise, considering the bulk of the “work” performed by international student athletes is on campus, and likely to exceed twenty hours per week, the F-1 Visa holder would likely violate their status quite quickly. Finally, qualifying for employment authorization due to severe economic hardship may provide the immediate benefit of permission to work, but it could also place the international student athlete at risk of losing their F-1 status under 8 C.F.R. § 214.2(f)(1)(i)(B), which requires the F-1 Visa holder to demonstrate the ability to financially support themselves through the duration of their university program. For these reasons, off-campus is not the antidote to unauthorized employee status.
On-Campus Employment
Lastly, federal regulations afford F-1 students the ability to work “on the school’s premises” in a part-time position that will not exceed twenty hours per week while classes are in session, though full-time employment is permitted during breaks throughout the academic year and “during the annual vacation.” In prototypical legal-speak where “up” can mean “up” or it can mean “down,” an off-campus place of employment can be considered on-campus if (a) it “is educationally affiliated with the school,” (b) “the educational affiliation [is] associated with the school’s established curriculum,” and (c) similar to CPT, “the employment [is] an integral part of the student’s educational program.” And like off-campus employment, special dispensations are available for F-1 Visa holders who have “emergent circumstances” that will cause “severe economic hardship.” The reasons why these options are unhelpful to international student athletes remain the same as above: much of the alleged employment will take place off of the school’s premises (e.g., away games, team trips, etc.) and will likely exceed twenty hours per week, it will be difficult for many F-1 Visa holders to establish that their participation in collegiate athletics is integral to their degree program, and claiming severe economic hardship may backfire for a classification that requires its holder to demonstrate the ability to support themself financially for the duration of their proposed stay.
There are two other opportunities unique to on-campus employment that are equally unhelpful for international student athletes:
- The ability to work on-campus for “commercial firms which provide services for students on campus, such as the school bookstore or cafeteria.” Leveraging this option would require the schools and/or their teams to contort themselves into being a “commercial firm”—and not a collection of students representing a nonprofit organization—that exist to “provide direct student services”—and not a form of entertainment that is frequently performed at unaffiliated locations for unaffiliated students.
To the extent that interscholastic athletics enhance a student’s college experience and the college’s brand, earn money through corporate sponsorships, and/or generate revenue through alumni donations, international student athletes could be deemed to “provide services to students on campus.” But even then, these attributes of international student athletes’ on-campus work are far from universal between universities or even within universities between sports, and would arguably resemble working for “a construction company building a school building,” which the Regulations states is not authorized on-campus employment, insomuch as the services rendered to students, if any, are indirect.
And in any event, this requirement is but one of many in a complex equation subject to the aforementioned constraints concerning the identity of the employer, time worked, location where work will take place, and relationship to the student’s field of study.
- The ability to consider off-campus work to be on campus if the off-campus location in question is (a) “educationally affiliated with the school,” (b) “an integral part of the student’s educational program,” and (c) “related to contractually funded research projects at the post-graduate level.” A college basketball team’s away games, much less their trip to Hawaii for an early season tournament, are at locations that are not “educationally affiliated” with the school. Further, these off-campus events would be unavailable to team members who are undergraduate students. Lastly, that this off-campus/on-campus employment for post-graduates could be connected to contractually-funded research strains credulity.
As immigration practitioners, it is industry dogma to remind our clients that nothing is ever guaranteed. In this context, however, we feel comfortable guaranteeing that these three elements will never line-up in such a way that will grant international student athletes work authorization.
The fact that on-campus employment may extend to certain employment situations that take place off of the school’s premises does suggest that there could be room for creativity in this area. In that vein, USCIS could offer guidance and/or update its policy manual to re-interpret key terms to offer sufficient leeway that would allow international student athletes the ability to work. Still, short of action from Congress, it is unlikely that USCIS could meaningfully alter and expand F-1 Visa holders’ employment authorization opportunities without engaging in the customary rule making process under the Administrative Procedures Act.
Conclusion
To be clear, this article leaves open the question of whether international student athletes should be considered their university’s employees for the reasons set forth in the Dartmouth College decision. Similarly, we have avoided discussing the risks and obligations posed to universities, as employers generally but specifically as employers of foreign nationals, or the regulatory regimes invoked in maintaining full compliance with U.S. immigration law and regulations. And of course, as champions of the capacity of foreign nationals writ large, and international students especially, to enrich our communities and the United States as a whole, we do not wish to stand in the way of F-1 Visa holders being compensated the same as their U.S. worker teammates through their athletic prowess or equally capitalize on their NIL rights.
Indeed, this article stems from our concern for F-1 Visa holders and our urge to highlight how this larger, decades-long journey toward compensating student athletes has not properly accounted for the consequences wrought on a significant portion—13%!—of the Division I student athlete population. Thus, we hope not only that stakeholders incorporate these considerations into future efforts on this front but also that the U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, and U.S. Congress clarify the ability for international student athletes to fairly access the fruits of their labors.