Sports Law Blog
All things legal relating
to the sports world...
Monday, September 20, 2010
Mascot Violence in Ohio: Vicarious Liability?

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 had the student playing Brutus Buckeye 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?

Update: in the comments section, Tim and Nathaniel--both, admittedly, grads of Ohio University--point out that mascot fights are not exceptionally unusual so perhaps an assumption of risk defense on the part of their alma mater would have some merit.

Update 2: While none of these are necessarily on-point, we've blogged about mascot and tort issues before. For example, in December 2006, Rick wrote about a lawsuit filed against the New Orleans Saints because its mascot was allegedly negligent in crashing a golf cart into a fourth-string quarterback. In April 2008, Geoff wrote about the Chicago Bulls' mascot, Benny, possibly being negligent in how it high-fived fans. Last but not least (or maybe least), in March 2010, I wrote about the tort implications of flying hotdogs that originate with mascots.


Will I get commentary from my fellow Bobcat alum Mr. Grow?

I thought this sort of thing came with the territory, that various physical rumbling with other mascots was part of the entertainment role mascots are charged with.

Anonymous tim -- 9/20/2010 3:31 PM  

No comment on this particular incident, but I agree that a plausible assumption of the risk defense could be asserted given the frequency of such incidents. See, e.g.,

Blogger Nathaniel Grow -- 9/20/2010 4:14 PM  

Don't forget products liability. Maybe mascot costumes, given the assumption of risk argument, should be designed with greater visibility to make evasion possible.

Blogger Geoffrey Rapp -- 9/20/2010 5:45 PM  

But it depends to the people who react over it seriously.

Anonymous escalante blogger -- 9/21/2010 1:50 AM  

Tough to use a vicarious liability theory to go after Ohio University, given the intentional conduct here. But perhaps a direct theory of liability against Ohio U. based on what you discussed.

Anonymous Bill -- 9/22/2010 12:54 PM  

My initial reaction over the weekend was why was the Bobcat allowed to do this twice? After the first incident, he should have been disciplined by someone overseeing the Ohio U cheerleading group. Now, they were not at home, so my initial reaction might be overreaching. However, I think the fact that the Bobcat was allowed to attack Brutus again hurts Ohio University's position. Nathaniel, I agree that some physical behavior is not unusual, but when I viewed this it seemed like an outright assault. This was not really an attempt to by entertaining banter and mock fighting. I was surprised that during the second attack, a bunch of Buckeye fans did not go after the Bobcat. What would happen if this provoked a real free-for-all with a bunch of participants really fighting.

Blogger Ed Edmonds -- 9/22/2010 9:43 PM  

People who wear the mascot costume accept some level of responsibility for possible injuries. Look at the NBA mascots when they perform high-flying tricks to sink dunks during intermissions and half-times.

This week, ESPN featured the Oregon Duck who does pushups every time the football scores. But it's not 7 or 3 pushups every time. It's whatever the current Oregon score is when they do score. So, if they have 42 points, then the Duck does 42 pushups. Another TD means the Duck does 49 pushups. Through 3 weeks of games, the Duck has done close to 1500 pushups and team is averaging 63 points per game.

Anonymous Anonymous -- 9/23/2010 10:24 PM  

Nice and too good post on sports related terms.

Anonymous jumping stilt -- 9/29/2010 2:47 AM  

Post a Comment