Game Changer: How Classifying Student-Athletes as Employees Adversely Affects International Students

by Cecilia Giles, Associate Member, University of Cincinnati Law Review Vol. 92

I. Introduction

The potential classification of student-athletes as employees sits at the forefront of current discourse surrounding college sports. Recently, the National Labor Relations Board (“NLRB”) ruled that the Dartmouth men’s basketball team can be classified as employees under Section 2(3) of the National Labor Relations Act (“NLRA”).¹ This new classification allows the team to unionize, which they did with a 13-2 vote.² Right now, the classification of student-athletes as employees applies only to the Dartmouth men’s basketball team.³ However, the ruling from the NLRB signals a shift in labor law that could soon see this classification apply to student-athletes across the United States.

This new classification poses a problem for international student-athletes.⁴ Most international students hold F-1 visas.⁵ Under this type of visa, students cannot participate in long term employment. Therefore, if international student-athletes were considered employees of their universities, they would be in direct violation of their visa. To prevent this from happening, Congress should amend the F-1 visa limitations to allow international student-athletes to continue participating on college sports teams.

Part II explains why it is important to designate student-athletes as employees and discusses recent developments in this topic. Part II will then lay out the different types of visas that international student-athletes are able to obtain. Part III will discuss how classifying student-athletes as employees affects international students and urge Congress to amend visa restrictions. Part IV will conclude.

II. Background

A. The Importance of Student-Athlete Unionization

The National Collegiate Athletic Association (“NCAA”) has a track-record of prohibiting student-athletes from profiting from their sport. Conversations about student-athlete compensation typically pertain to the use of their name, image, and likeness (commonly referred to as “NIL”).⁶ Until recently, student-athletes were prohibited from using their NIL to profit from opportunities such as social media advertisements or public appearances.⁷ However, in 2021, the Supreme Court held that the NCAA’s rules that prohibited student-athletes from receiving compensation violated section 1 of the Sherman Antitrust Act.⁸ This paved the way for states to pass a series of laws that now explicitly allow student-athletes to pursue profits from their NIL.⁹

However, despite now being able to profit from their NIL, student-athletes are still subject to exploitation from their respective universities in several different ways.¹⁰ First, universities are profiting off their student-athletes by using them to generate revenue from things such as ticket sales, merchandising, and television contracts.¹¹ In 2020, NCAA member schools generated $18.9 billion in annual revenue.¹² A large portion of this revenue goes to head coach salaries.¹³ In 2022, the sixteen highest paid coaches earned more than $5.45 million each.¹⁴ Coaches also receive buy-out clauses, where universities pay them exuberant sums not to work if they are fired without cause. Between 2010 and 2021, universities collectively paid $533.6 million in buy-out clauses to fired basketball and football coaches.¹⁵

Head coaches are not the only people who benefit from sports revenue.¹⁶ Assistant coaches, athletic directors, and other administrators all receive enormous salaries from the revenue brought in by athletic departments.¹⁷ One group, however, is noticeably absent from this list. Student-athletes are not receiving their fair share of the revenue that their respective athletic departments are bringing in.

Universities argue that they compensate their athletes in the form of free tuition or scholarships.¹⁸ This, however, is not true for all schools.¹⁹ Dartmouth, for example, does not offer athletes any talent-based scholarships or reduced tuition.²⁰ The school states that students who come to play basketball at Dartmouth will receive “benefits such as a valuable education and connections with a robust community of alumni.”²¹ One has to wonder how this is any different from any other non-athlete students at Dartmouth.

For argument’s sake, let’s say that student-athletes are compensated in the form of free tuition or scholarships. The problem with this notion, however, is that student-athletes do not receive the same quality of education as their non-athlete peers.²² Often, student-athletes must miss class because of practice or travel to away games.²³ Student-athletes usually cannot take advantage of summer opportunities, such as internships or employment, like other students due to their intense off-season training schedules.²⁴ Additionally, student-athletes are often steered by their athletic departments towards pursuing less academically challenging majors in order to focus more on their success on the field or court.²⁵ Considering all this, even if the athletes are being compensated in the form of free tuition or scholarships, an argument can be made that they are victims of wage theft.²⁶

Student-athletes can also be subject to exploitation because of the working conditions they are subjected to.²⁷ This includes countless hours of practices, games, traveling, as well as the risk of potential injuries all while balancing academic studies.²⁸ Universities typically do not pay for athletes’ insurance plans.²⁹ Instead, athletes are expected to be covered under their parents’ insurance, or else they are responsible for obtaining their own plans.³⁰ Thus, if a student-athlete is injured during a game or practice, it is their responsibility to cover their medical expenses.³¹ Depending on the severity of the injury, the costs may continue well after the student has graduated.³²

B. Recent Developments in the Student-Athlete Unionization Landscape

In 2015, a group of football players at Northwestern attempted to unionize. The Chicago district of the NLRB ruled that Northwestern football players were employees of Northwestern and could therefore unionize.³³ Northwestern appealed that decision, and the NLRB declined to assert jurisdiction.³⁴ The NLRB reasoned that “asserting jurisdiction over a single team would not promote stability in labor relations across the league.”³⁵ By denying jurisdiction, the NLRB prevented the football team from forming a union.³⁶

Nearly a decade later, the NLRB issued a different ruling. On February 5, 2024, the NLRB ruled that the players on Dartmouth’s men’s basketball team are employees under Section 2(3) of the NLRA.³⁷ In their decision, the NLRB reasoned that the Dartmouth men’s basketball team performs work which benefits Dartmouth.³⁸ The ruling acknowledged that there is some factual dispute about exactly how much revenue is generated by the program, but stated that how profitable a business is does not change the fact that its employees are in fact employees.³⁹ The NLRB further reasoned that Dartmouth’s basketball players perform work in exchange for compensation.⁴⁰ While the compensation does not come in the form of traditional athletic scholarships, the team receives other compensation such as equipment, apparel, tickets to games, lodging, and meals.⁴¹ This ruling ultimately allowed the team to unionize, which it did with a 13-2 vote on March 5, 2024.⁴² Dartmouth subsequently filed a request to the NLRB for review.⁴³ The university can also appeal the decision, and likely will.⁴⁴

There is another case regarding this issue currently sitting in the US Court of Appeals for the Third Circuit.⁴⁵ In this case, the NCAA is seeking reversal of a ruling that student-athlete plaintiffs from Villanova University, Fordham University, Sacred Heart University, Cornell University, and Lafayette College can pursue claims under the Fair Labor Standards Act.⁴⁶ The lower court held that student-athletes can pursue these claims because they are joint employees of their respective universities and the NCAA.⁴⁷ While it is not yet clear how the Third Circuit will rule on this issue, it has the potential to apply more broadly than other cases on this issue, as it would affect all institutions in the Third Circuit.⁴⁸ Additionally, ruling in favor of the plaintiffs would create a circuit split with the Seventh and Ninth Circuits, who have previously ruled that student-athletes cannot be considered employees.⁴⁹

The decision that college athletes can be classified as employees under the NLRA is currently limited to Dartmouth’s men’s basketball team.⁵⁰ However, this decision, in conjunction with the litigation in the Third Circuit, has the potential to apply more broadly and affect student-athletes all across the country.⁵¹

C. Risk to International Students

The classification of student-athletes as employees is crucial to protect them from exploitation by their universities. By being classified as employees, student-athletes have the ability to unionize and use their collective bargaining power to advocate for their interests. However, while it is important to protect the rights of student-athletes, classifying them as employees simultaneously puts international student-athletes at risk.⁵²

1. F-1 Visa

Most international student-athletes are F-1 visa holders.⁵³ Currently, there are about 20,000 athletes enrolled at American colleges and universities that hold F-1 visas.⁵⁴ In order to obtain an F-1 visa, students must meet certain requirements, including full-time enrollment in an academic program at an approved school, proficiency in English or enrollment in English classes, sufficient funds available to support the student during the course of study, and a residence in their home country that they have no intention of abandoning.⁵⁵

The F-1 visa has certain prohibitions regarding employment. According to United States Citizenship and Immigration Services (“USCIS”), students are only eligible to work on campus for up to twenty hours a week.⁵⁶ This on campus job cannot displace a United States citizen or Lawful Permanent Resident.⁵⁷ However, the F-1 visa requirements prohibit holders from any long-term employment.⁵⁸ Therefore, if international student-athletes were considered employees of their universities, they would be in direct violation of their visa.⁵⁹ Violating a visa can have severe consequences, such as ineligibility for visa extensions, bars from future naturalization, or deportation.⁶⁰

2. P-1 and O-1 Visas

While most international student-athletes enter the United States on an F-1 visa, there are other visas that permit entry. One such visa is the P-1 visa.⁶¹ This visa allows non-citizens to temporarily live in the United States for the purposes of competing at specific athletic competitions.⁶² In order to qualify for this type of visa, non-citizens must be internationally recognized athletes.⁶³ Their “achievement must be renowned, leading, or well-known in more than one country.”⁶⁴

Another visa is the O-1 visa.⁶⁵ The O-1 visa permits non-citizens to enter the United States if they possess “extraordinary ability in the sciences, arts, education, business, or athletics.”⁶⁶ If USCIS finds a non-citizen to possess this extraordinary ability, it will grant them entry to the United States to continue work in the area of that ability.⁶⁷

Some international student-athletes have been able to obtain P-1 or O-1 visas.⁶⁸ However, attainment of these visas is extremely rare, given the high threshold of “renowned achievement” or “extraordinary ability” set by USCIS.⁶⁹ Further, these two visas are both “nonimmigrant” visas, meaning that their holders intend to stay in the United States for only a limited period of time. That limited period is likely not long enough for international student-athletes to complete a standard four-year degree. Therefore, directing international students to obtain P-1 or O-1 visas is not a viable solution for their potential ineligibility of the traditional F-1 visa.⁷⁰

III. Discussion

Classifying student-athletes as Section 2(3) employees under the Act is important because student-athletes would then be within their rights under the law to organize collectively in response to their legitimate grievances, to bargain with universities about the terms and conditions of their employment, to file unfair labor practices against their schools, and to be protected from retaliation from doing all of the above. Statistics suggest that the student-athletes are at least willing to explore the possibility of unionizing. A 2023 survey found that of 512 student-athletes surveyed, 62% favored unionization.⁷¹

However, despite the importance of it, this classification could potentially have long-term, detrimental effects on the ability of international student-athletes to obtain visas.⁷² Right now, the NLRB decision classifying the Dartmouth men’s basketball team as employees is limited only to that team.⁷³ However, this case signifies a broader shift in labor law. Student-athletes across the country will likely soon be classified as employees of their institutions.⁷⁴ Consular officers already possess broad discretion to deny visa applications for any reason they see fit.⁷⁵ By categorizing student-athletes as employees, a practice contrary to the F-1 visa regulations, consular officers have even more grounds for visa denial. This change could effectively bar international students from participating on any college sports team in the United States.

This conflict highlights the need for action from both Congress and immigration agencies. Congressional intervention is imperative to protect the well-being and opportunities of international student-athletes in the United States. Currently, there is a proposed bill that would allow international student-athletes to profit from their NIL, just like their citizen peers.⁷⁶ This bill, however, would not solve the potential employee problem of international student-athletes being in violation of their visa.⁷⁷ The international students would still be classified as employees of their institutions, which is not allowed under the F-1 visa.⁷⁸

Instead, Congress should reconsider the limitations of the F-1 visa and amend them to allow international student-athletes to play on college sports teams without violating their visas. This would allow international students to continue participating in the same opportunities at college as other students. Congress could amend the F-1 visa category broadly to allow all visa holders to be employees of their academic institutions. But this is unlikely to happen, and even if it does, it definitely will not happen quickly. Alternatively, Congress could limit an amendment to apply strictly to student-athletes, and limit employment to being a member of the athletic department. Either option would clear up the discrepancy between the classification of student-athletes as employees and the limitations of the F-1 visa and allow international students to continue to participate in college sports.

IV. Conclusion

Classifying student-athletes as employees of their schools is important for safeguarding their rights and well-being. As employees, student-athletes have the right to unionize, and can therefore use collective bargaining to negotiate for compensation, improved working conditions, and other benefits. Currently, the decision that student-athletes can unionize is limited to the Dartmouth men’s basketball team. However, that decision, in conjunction with other pending cases, could soon apply to student-athletes across the country.

Despite its importance, the designation of student-athletes as employees of their institutions adversely effects international students. Accepting long-term employment is not currently permitted under the F-1 visa. Congress needs to amend the limitations of the F-1 visa to allow international student-athletes to play on college sports teams without violating their visas.

Cover Photo by Markus Spiske on Unsplash

Cecilia Giles

Cecilia is a 2L at the University of Cincinnati College of Law. She received her bachelor’s degree in psychology from the University of Florida. Prior to law school, she worked as an English language teacher at a high school in France. Upon graduation, she hopes to pursue opportunities in public interest work

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