NIL and college eligibility

Why this page exists

United States college sport is a major pathway for athletes from everywhere else — roughly 22,600 international athletes, about 4% of all NCAA participants and 7% in Division I. In five years its economic rules have been rebuilt from the ground up, and its eligibility rules were replaced in June 2026. Both changes interact badly with immigration status, and that interaction is barely covered anywhere.

One warning before anything else: this is the least settled subject on this site. As of August 2026 dozens of eligibility cases are running in federal and state courts with inconsistent outcomes, and whether a given athlete may compete can depend on which court has ruled and whether that ruling has been stayed. The page says so rather than pretending a single national rule exists.^[1]

From amateurism to Alston

The NCAA's founding constitution of 1906 provided that no student could represent a college "who is paid or receives, directly or indirectly, any money, or financial concession." Enforcement ran entirely through eligibility: an athlete who used their athletic skill for unpermitted compensation simply became ineligible.^[2]

NCAA v. Alston, decided unanimously on 21 June 2021, is narrower than its reputation. It was an antitrust case about education-related benefits — graduate scholarships, tutoring, computers — not about NIL, and the Court expressly did not decide the lawfulness of the NCAA's other compensation limits. What it did do was refuse the NCAA any special antitrust treatment.^[3]

The concurrence did the rest of the work. Justice Kavanaugh wrote that the remaining rules "also raise serious questions under the antitrust laws," that "price-fixing labor is price-fixing labor," and — the line that has been quoted in every case since — "Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate… The NCAA is not above the law."^[3]

NIL, and the state-law forcing function

On 1 July 2021 the NCAA suspended its own NIL rules by interim policy in all three divisions. The timing was not a choice: several state laws permitting athlete endorsement took effect that day, and the policy was adopted hours beforehand. Under it, athletes could earn from their name, image and likeness consistent with the law of the state where their school sits; where no state law existed, they could do so without breaching NCAA rules. Pay-for-play and recruiting inducements remained prohibited.^[4]

The NCAA never adopted permanent NIL rules. The interim policy simply stood until the House settlement replaced it four years later.^[5]

About 35 states now have active NIL policies by statute or executive order. The competitive dynamic ran in one direction: some states repealed or relaxed their laws so as not to be stricter than the NCAA's rules, others amended theirs to let schools help athletes find deals, and a number enacted statutes barring the NCAA from penalising in-state athletes or schools for lawful NIL activity — which sets up a direct collision between national enforcement and state law that has not yet been resolved.^[5] [6]

The House settlement

Three consolidated antitrust cases — House, Hubbard and Carter — settled against the NCAA and the five defendant conferences, with final approval from Judge Claudia Wilken on 6 June 2025.

The terms reshaped the economics of the whole system:

• About $2.8 billion in back damages over ten years, to a class of roughly 390,000 current and former athletes — funded roughly 60% from NCAA insurance and reserves and 40% from reduced distributions to member institutions.
• Direct revenue sharing from schools to athletes, capped at about $20.5 million per school in the first year and escalating.
• Roster limits replacing scholarship limits.
• A new College Sports Commission and a clearinghouse to review third-party NIL deals above $600 for a valid business purpose and fair market value.

The structural significance is that schools now pay athletes directly. What the settlement did not do was decide employment status, or address international athletes at all — see below.^[7] [8]

Are they employees? No — and the reasons matter

As of August 2026, no court, agency or statute has held that US college athletes are employees.

In Johnson v. NCAA the Third Circuit ruled on 11 July 2024 that athletes may be employees under federal wage law, rejecting the NCAA's categorical amateurism defence as a "frayed tradition" and remanding with a four-part economic-realities test: whether the athlete performs services for another party, necessarily and primarily for that party's benefit, under its control, in return for express or implied compensation. That test has never been applied on the merits — the case is still at the motion-to-dismiss stage. Two other circuits have held athletes are not employees, so there is a split in substance.^[9]

The labour-law route closed. Dartmouth men's basketball players voted 13–2 to unionise in March 2024, the first successful college-athlete union election — and on 31 December 2024 the union withdrew the petition before the national labour board could rule, a strategic retreat ahead of a change in the board's composition. In mid-February 2025 the acting general counsel rescinded the 2021 memorandum asserting that some college athletes are employees.^[10] [11]

The eligibility rule changed, and then the courts arrived

On 23 June 2026 the NCAA replaced the four-seasons-in-five-years model with an age-based rule: a single continuous five-year period of eligibility beginning at the earlier of first full-time enrolment at any college or university, or the academic year following the athlete's nineteenth birthday. The clock runs continuously and does not pause for injury, transfer or time away.^[12]

It abolishes a great deal: seasons-of-competition limits, redshirts both voluntary and medical, delayed-enrolment rules, and the entire family of waivers — medical hardship, extension of eligibility, season of competition, delayed enrolment. Three exceptions survive: active military service, an official religious mission, and pregnancy. The NCAA disputes the "five for five" shorthand, noting that the rule "does not guarantee five years for all student-athletes, particularly those who delay enrollment."^[12] [13]

Then it was litigated immediately. The rule applies prospectively, excluding athletes who first enrolled in 2022–23 and had used four seasons by the end of 2025–26. In Wisne v. NCAA a Colorado federal judge certified a nationwide class and enjoined the rule on 31 July 2026; the Tenth Circuit stayed that injunction on 21 August 2026, and athletes who had become eligible under it were no longer eligible. Meanwhile individual injunctions have been granted in state courts in Ohio, New Jersey, Georgia, Pennsylvania, South Carolina, New York, Arkansas, Texas and Idaho, and denied in Nevada, New York federal court and Texas — with a multidistrict consolidation petition pending.^[1] [14]

The practical position, stated plainly: whether a class-of-2022 athlete can play a fifth season depends on which court has ruled and whether that ruling is stayed. An athlete who plays under an injunction later dissolved faces the NCAA's rule of restitution — vacated wins, forfeited postseason eligibility, disgorged revenue.^[14]

The international-athlete problem

This is the part most accounts omit, and the part that matters most to readers outside the United States.

Most international college athletes hold an F-1 student visa, which generally confines them to on-campus employment or educationally affiliated work. Immigration authorities read "employment" expansively: authorisation is needed where a foreign national performs services expecting compensation of any kind, and the definition captures non-monetary benefits such as housing and gifts. Filming a commercial, posting sponsored content and making appearances are active income-generating activities performed off campus — squarely outside what the visa permits.^[15]

The trap is that the obvious workaround fails on the other side. If the arrangement is structured as passive licensing but the athlete actually creates content, it breaches the visa; if the athlete genuinely does nothing, it breaches the NCAA's prohibition on compensation for work not performed. As one university's general counsel put it, international athletes "would then be forced to pick their violation."^[15] [16]

What does work is narrow: performing the work while physically outside the United States, since the employment rules do not cross the border — though the athlete then falls under that country's own labour and tax law.^[15]

Does revenue sharing raise the same problem? Almost certainly, and nobody has answered it. The NCAA's own February 2026 implementation guidance contains nothing at all on international athletes, visas or immigration status. Some schools are characterising the payments as royalties on the theory that royalties are passive; accountants have warned that where the payments involve promotion, content creation or appearances, that characterisation is unlikely to hold, and that "tax law and immigration law are not the same." International athletes are also non-resident aliens for tax purposes, so payments must be reported on a different form and are subject to 30% withholding absent a valid treaty claim.^[17]

There has never been federal guidance. The immigration authorities' only on-record statement, from July 2021, is that they continue to assess the issue. A bipartisan group of senators wrote asking for clarification in 2024 and received none. A bill written specifically for this problem was introduced in April 2024 and referred to committee, where it stopped. The bill actually moving through Congress in 2026 contains no visa provision at all.^[18] [19]

And a new collision has opened. A final immigration rule published in July 2026 replaces open-ended student status with a fixed admission period not exceeding four years, effective 15 September 2026 — against an NCAA eligibility clock of five. Extensions are available for illness, circumstances outside the student's control and compelling academic reasons, which do not obviously include playing a fifth season. The rule is under challenge in federal court, with argument set for 9 September 2026, and the outcome was unknown when this page was written.^[20] [21]

One further trap specific to international athletes: because the five-year clock starts at first full-time enrolment at any institution, expressly including a foreign university, someone who studied at home before coming to the United States may have already consumed eligibility without ever competing.^[13]

Congress has enacted nothing

Say it plainly, because it is constantly misreported: as of August 2026 there is no federal NIL or college-sports statute.

The SCORE Act would have created a federal NIL right preempting state law, capped agent fees at 5%, granted the NCAA a limited antitrust exemption and categorically barred athletes from being classified as employees. It was pulled from the House floor twice, in December 2025 and again in May 2026, and never received a floor vote.^[22]

The Protect College Sports Act of 2026 is the live vehicle. It passed the Senate Commerce Committee 19–9 in June 2026 and would codify NIL rights, register agents, create an ombudsman and a medical trust fund, guarantee one transfer without loss of eligibility, set a five-year eligibility framework, continue the revenue-share cap, preempt conflicting state law and — deliberately, unlike the SCORE Act — stay neutral on employment status. It failed to reach a floor vote before the August 2026 recess but holds a place on the September calendar. It is not law.^[23] [24]

Two executive orders do exist and do bind federal agencies — one of July 2025 and a second whose operative sections took effect on 1 August 2026, defining "improper financial activities" and "fraudulent NIL schemes" for institutions above a revenue threshold and directing agencies to weigh violations when assessing federal contracts and grants. They are not a substitute for legislation: they confer no antitrust immunity, create no private right of action, do not automatically preempt state law, and can be rescinded.^[25] [26]