Wiggins Never a Jayhawk? Foreign Student Athletes May be Ineligible to Play if College Athletes are Employees

There are many potential consequences to college athletes being deemed employees. One potential consequence that hasn't been discussed, and that was brought to my attention in a reader e-mail, is the impact employee status would have on foreign students in college who also play sports.  These student athletes are in the United States on F-1 Visas.

Immigration attorney Theodore Chadwick of the Wisconsin-based Grzeca Law Group raises this issue and emails me what it all means:



I've been following the potential unionization and “employee” designation of student athletes, and given my occupation, I thought of another wrinkle that I haven’t seen addressed in any news articles or opinions.

Students from foreign countries are in the United States pursuant to F-1 status, which generally allows for studies, but not work. Only under limited situations are foreign students allowed to be employed while enrolled: either for on-campus employment of 20 or less hours, or based on financial need. Student athletes practice far more than 20 hours per week and must travel for games. 

Thus, it appears that if student athletes are deemed employees, foreign students would be ineligible to play (work) based on current immigration laws.


So if college athletes were employees, Andrew Wiggins, a Canadian and likely top 3 pick in the 2014 NBA draft, may not have been able to play at University of Kansas this past year.  It has been reported by some outlets that Wiggins may have dual Canadian-U.S. citizenship because his dad, former NBA player Mitchell Wiggins, is an American.  Assuming Andrew Wiggins only has Canadian citizenship and would not seek U.S. citizenship, what might Wiggins have done instead this past year?

The NBA wasn't an option due to the 19-year-old plus one year removed from high school eligibility rule.  So I imagine Wiggins would have played professionally abroad for a year and waited out the NBA's eligibility rule, much like Brandon Jennings did from 2008 to 2009.  During that year, Jennings earned more than $1.6 million in salary for Lottomatica Roma while also receiving substantial income from Under Armour in an endorsement deal.

Much less likely, Wiggins could played in the D League, where he would have been eligible, but where salaries are capped at around $25K.  While endorsement income would have supplemented his D League salary, Wiggins would still have earned much more playing abroad.

Or Wiggins could have simply sat out the year and worked out in preparation for this June's draft.

But the larger point is Wiggins may not have been in college basketball for a year, and the same would be true of other star college players who aren't U.S. citizens.

Update: Attorney Chadwick, in response to Twitter comments, emails me several points which I excerpt below:


As some comments state, there might be a fix with another visa (probably a P, not an H-1 or O as they’ve suggested), but it would be a bit more complicated than simply switching categories...[T]o get P status, the individual or team must be “internationally recognized,” which is not an easy standard.  Andrew Wiggins probably could get by with that, but doubtful for almost everyone else and most other teams, especially D-II and D-III.  Also, I don’t think there are regulations specifically discussing this, but I don’t know that individuals in P status would be allowed to study.