He sits inside a cramped San Diego apartment, Switzerland jersey hanging above his head and slanted wall caving in on his 6-foot-8 frame, gathering his thoughts about the future.
He knows in a few short weeks he will be somewhere in the middle of Portugal realizing his dream of playing for the Swiss national basketball team.
He knows, too, that when his number is called and he gets into his first friendly game, he will be the most marketable he has ever been as an athlete, even if it was never his goal when he got into basketball.
But the thing Toni Rocak, a rising senior on the UCSD men’s basketball team, is most aware of, is none of it will matter when he returns to San Diego in August to prepare for a college basketball season. He will be left out of the new arms race to compensate marketable college athletes. And it will have nothing to do with his new Twitter followers from the international game or the increasing number of companies that might want to invest in his image.
It’s because of his background, which spans from Croatia to Switzerland — one that includes seven languages — that Rocak will be barred from earning compensation like the rest of his teammates.
Because of their student visa status, international college athletes stand to potentially miss out on benefits of Name, Image and Likeness (NIL) laws that swept the nation last week. As the NCAA suspended all NIL rules, allowing athletes in all 50 states to immediately turn a profit off their likeness as of July 1, the internationals are on the outside looking in.
“I just find it unfair. I think the NCAA often forgets about international college athletes,” Rocak said. “At the heart of this is athletes getting a voice. It’s something (internationals) still don’t have.”
It has made the last few weeks, as teammates talk about endorsements, frustrating.
“I kept seeing these texts on the GroupMe saying, ‘Oh, this is cool. Look at this,’” Katja Pavicevic, a Canadian swimmer at UCSD, said. “But I looked at that same thing and my immediate thought was, ‘Oh, I can’t do that.’ It’s disheartening. We put in the same amount of work and benefit our institutions the same way.”
The legal issue
The heart of the issue as to why international college athletes are potentially being left out of NIL benefits centers on the mechanics of the student visa process. It hinges on what the student visa allows, and more importantly doesn’t allow, students to do while attending universities.
The majority of international college athletes, according to U.S. Census figures, are in the U.S. on an F-1 visa. That mainly allows students to do just three things while they are in the country.
First, they are required to take a full course-load of classes each semester — about 12 credit hours at most institutions. After that, students are permitted to work 20 hours per week at an on-campus job. Finally, the third part of the visa stipulates the only way a student could earn off-campus compensation would be through an internship in their field of study.
That is broken down further into two categories. There are optional practical trainings, which are reserved mainly for graduate-level students. There are also curriculum practical trainings, for undergraduate students. The CPAs, as they are called, allow for students to get a paid internship specifically, and solely, tied to their major in college.
“The visa laws are designed to protect the U.S. economy,” said Angelica Sciencio, a practicing immigration attorney in San Diego. “Students are here to study. They aren’t here to get jobs or detract from the U.S. workers. It’s hyperprotective.”
And this is where NIL comes in, or doesn’t.
The majority of the compensation college athletes will earn will come from sources outside the university, with companies trying to invest in a player’s likeness through endorsements, advertisements and autographs. It is unclear where that fits into the F-1 visa requirements. It can’t be classified as an on-campus job. It also isn’t an off-campus internship tied to any major.
“Maybe, if a student is a kinesiology major or sports health, it could be considered a CPA in their field of study,” said Robynn Allveri, a designated student officer (DSO) who deals with international students at USD.
“But for an (agriculture) major, I don’t see how it fits.”
Allveri and her DSO colleagues have been in the process of trying to find workarounds. Most of it centers on the word “employment” and if the income from companies is “active” or “passive.”
According to Allveri, international college athletes will likely not be able to be “employed” by outside companies that require them to post a certain number of times on social media. However, if it is more of a “passive” form of income, it would be fine.
“Currently, internationals can invest in the stock market. They can buy a house and make money from an investment. It’s passive income and maybe the NIL can be considered that,” Allveri said.
However, others aren’t as confident.
“I don’t see how student-athletes required to go to practices and games, and then make money in relation to that, it would be considered passive,” Sciencio said.
“I would be cautious because if it’s the slightest violation you could be sent home. You can’t attend college and it could affect your future ability to travel.”
The part that makes this all the more frustrating for international athletes is they were the ones set to benefit the most from all of this.
Many international athletes in the U.S. compete for the national teams of their home country, without receiving any pay because of their amateur status. Rocak, for example, will play for the full national team but be the only one on the roster not receiving an income. Pavicevic, too, has competed at the junior level for Canada.
To make things worse, while NIL laws are sweeping the country this summer, it is international season. Athletes are going to compete in events like the Olympics, and their fame will reach an all-time high in their home country and abroad.
“It’s like rocket fuel,” Vince Thompson, CEO of the sports marketing firm MELT, said of the timing. “They are set to make the most money immediately out of this.”
With the Tokyo Olympics on the horizon, nonrevenue sports are expected to see a spike in viewership and marketability immediately following the games, too. Olympic favorites such as swimming that are brimming with international college athletes will be all over the airwaves.
“Swimming is getting a higher profile. The championships are being broadcast on NBC,” Pavicevic said, who competed in the NCAA championships as a freshman. “It’s sad because we are talking about things like equal pay and we won’t be able to do it.”
The good part, at least for now, is international athletes could theoretically make money from companies in their home country. For example, a Canadian company could do business with Pavicevic. It would be the equivalent of an international student getting a summer job when they go back home.
But they will not be able to make money once they come back to the U.S.
International athletes have a larger following than most of their U.S. counterparts by virtue of their stature on national teams. It is also true that U.S. companies could try to expand outside the country and into bigger markets through the international stars.
“I mean on paper, I am one of the more marketable targets for companies,” Rocak said. “… And I know I’m at (a smaller school). I know there are bigger schools where international athletes are dealing with this, like San Diego State University right across the street. Those guys will have (more opportunities) than us to make money.”
There are some who believe the NCAA and the government will waive the visa restrictions for college athletes. But anytime a government agency is involved, or multiple governments, it is uncertain.
Others expect more clarity when a federal law comes out. Or when a state law in California goes into effect, potentially in September.
For now, though, there is little guidance. Pavicevic said there have been no meetings to go over what can and can’t be done. Allveri said the weekly DSO meetings haven’t talked much about the topic.
“I am going to fight the NCAA. I’m fine with that. I’m not going to sit back and watch,” Rocak said.
“But I’m not going to fight the government. That’s too much. That’s your life.”