Matt Mitten has an interesting new paper on SSRN entitled (this is a mouthful!) “Student-Eligibility Rules Limiting Athletic Performance or Prohibiting Athletic Participation for Health Reasons Despite Medical Uncertainty: Legal and Ethical Considerations.” The paper discusses two policy problems in intercollegiate athletics that both turn on how much paternalism is appropriate in preventing student-athletes from doing things that may ultimately prove harmful to themselves.
The first problem is use of steroids. Although performance enhancing drugs are often condemned for giving some athletes an unfair advantage, Matt suggests that unfair advantages are an unavoidable feature of intercollegiate athletics, noting, for instance, disparities in coaching and training facilities. Moreover, after reviewing the medical evidence, Matt concludes that “currently there are no definitive scientific or epidemiological studies evidencing that a healthy adult’s usage of anabolic steroids in appropriate dosages necessarily will have life-threatening or long-term serious health effects.” But, of course, the absence of conclusive evidence of danger does not mean that steroids are safe. Given uncertainty, the question is whether athletes should be permitted to decide for themselves whether to bear the risk.
The second problem is participation by student-athletes suffering from a medical condition (e.g., a spinal or cardiovascular abnormality) that may give rise to increased risks of serious or life-threatening injury. Again, the question is one of paternalism in the face of medical uncertainty: should the athlete himself or herself be given the right to decide whether to bear the risks? As with the steroid issue, Matt ultimately concludes that the NCAA and individual universities have “valid legal and ethical authority” to protect student-athletes from themselves.
In the absence of medical proof, it’s considerably odd that the author should conclude that the NCAA has valid ethical authority to protect athletes from themselves.
Typically, a conclusion follows logically from its premises, although in this case, the author appears to not find himself bound by such restrictions.
With all due respect, I disagree with how my colleague Michael O’Hear has characterized the theme of my article: “how much paternalism is appropriate in preventing student-athletes from doing things that may ultimately prove harmful to themselves.” A more apt description of the central issue I address is whether “student-athlete eligibility rules to promote good health justify limits and restrictions on the pursuit of excellence in intercollegiate sport.”
There is no legal right to participate in intercollegiate athletics; sports participation is based on a consensual relationship between the parties. The NCAA and its member universities may condition eligibility upon a student-athlete’s compliance with reasonable requirements that further a legitimate objective such as maintaining the integrity of athletic competition and/or protecting sports participants’ health and safety. My conclusion is as follows: “The NCAA and its member universities, as producers and internal regulators of intercollegiate sports, have valid legal and ethical authority to establish and enforce student-athlete eligibility rules that limit athletic performance or prohibit athletic participation for legitimate and important health reasons despite medical uncertainty. Student-athlete eligibility rules requiring compliance with the NCAA’s drug testing program and medical clearance by the university’s team physician establish appropriate limits and restrictions on the pursuit of excellence in intercollegiate sport in order to ensure good health.“
It’s obvious that Anthony Roberts hasn’t read my article before asserting that my conclusion does not follow logically from its premise. In the article I set forth two premises: 1)“The unregulated use of anabolic steroids as a means of enhancing athletic performance threatens to undermine the essential nature and integrity of competitive sport and transform it into merely a spectacle or an exhibition of an athletic accomplishment.” and 2) “Conducting scientific studies on humans to determine whether the use of anabolic steroids solely to enhance athletic performance has serious adverse health effects would be illegal and raises important ethical issues.” I argue in support of the following conclusion: “The accounting profession requires that a conservative approach be taken when the economic value of an asset is uncertain. Given that the health and welfare of young athletes (perhaps life itself) is at stake, it is entirely appropriate for the NCAA to apply this same principle and to adopt a conservative position regarding whether student-athletes are permitted to assume uncertain health risks that are potentially dangerous—particularly given today’s ‘win at all costs’ philosophy in elite competitive sport.” Although I understand and respect his apparent disagreement with my conclusion, I would appreciate it if Mr. Roberts would explain his perception that my logic is flawed.