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Mascot Violence in Ohio: Vicarious Liability?

By Rick Karcher, Michael McCann, Geoffrey Rapp, Greg Skidmore, and Howard Wasserman

On Saturday, the nation's #2 ranked team, Ohio State University, and the non-ranked Ohio University played one another in a clear mismatch. Not surprisingly, Ohio State pummeled Ohio University, at least during the game (Ohio State won 43-7).

Ohio University, however, got some hits in before the game. That was when Ohio University's mascot, Bobcat, twice attacked Ohio State's University, Brutus Buckeye, including during a team prayer. Here's the video:

Ohio University has apologized to Ohio State for the incident and also fired the student who was dressed as Bobcat. The student has even been "banned from any further affiliation with Ohio University athletics."

Fair enough; it doesn't appear that anyone was hurt and I'm not sure what else Ohio University could do at this point.

But let's look backward and wonder what could have happened if the student playing Brutus Buckeye had been hurt. While he was presumably protected somewhat by his mascot costume, I'm sure he could have been hurt, especially when sucker punched by the other mascot.

If the student was injured, it would seem that Ohio University could have been sued under a vicarious liability theory. After-all, why did Ohio University pick the attacking student to play the mascot? What kind of selection process was used -- were there tryouts, were they other candidates, were any qualifications considered? Also, has this particular student ever shown violent or reckless tendencies? Are there NCAA or individual conference rules or suggestions on selection of mascots, or is that process left entirely to schools? Should it be regulated? Should it be professionalized, like mascots are for pro teams, which hire persons to play mascots?

On the other hand, does a student playing a mascot--like the student dressed as Brutus Buckeye--assume certain risks of injury? But even if he or she does assume some risks, would getting attacked by a fellow mascot really be one of them?

One last point: where was stadium security? Should they have intervened?

Full post as published by Sports Law Blog on September 20, 2010 (boomark / email).