Athletes in Transit: Why the Game is Different in Sports and the Visas Should be Too

At least as early as the ancient Olympic games, athletes have traveled to engage in competition. Participation in the games was so revered that military truces were enacted to secure the safety of spectators and athletes alike. In modern times, we can look to the holding of the first modern Olympics in 1896, followed a few decades later in 1930 with the first World Cup as the forefathers of modern international travel for athletes. And of course, this trend followed with the professionalization of sports and the desires of teams and fans to have the best and most commercially successful athletes. U.S. immigration law should be designed and interpreted to facilitate the entry of skilled athletes. Part I of this article provides a background of the current state of visas for both professional and amateur athletes, and e-gamers. Part I also examines potential issues of concern if the NCAA moves to allow student athletes to earn money from the name, image, and likeness. Part II examines the joint economic gains uniquely captured in sport through the importation of foreign players, and demonstrates that the interests of owners, players, and fans are uniquely aligned through the importation of foreign superstar talent. Part III examines how the Trump Administration tightened eligibility requirements through its interpretation and application of EB-1, P, and O visa guidelines over the past 4 years resulting in much greater rates of denial than at any time since the enactment of the COMPETE Act in 2006. Part III also proposes three immediate solutions: new regulations to allow foreign student athletes to earn money from their name, image, and likeness in accordance with proposed NCAA rule changes regarding name, image, and likeness (NIL); a clear category for e-gaming athletes as the field is primed for explosive growth over the next ten years; and a looser interpretation of the requirements for certain visas when utilized by athletes.