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.