Copyright (c) 2002 Yeshiva University

Cardozo Law Review

 

“Batter Up”

 

Paul Finkelman

 

May, 2002

 

23 Cardozo L. Rev. 1609

 

On April 18, 2001 Barry Bonds of the San Francisco Giants hit his 500th career home run. n1 It sailed over the fence and indeed out of Pacific Bell Park and into a part of San Francisco Bay known as McCovey Cove. n2 As the home run ball landed in the water, Bonds landed in the inner circle of baseball power hitters: the 500 home run club. This home run immediately elevated Bonds to the status of baseball immortal, joining such greats of Major League Baseball as Hank Aaron, Hank Greenberg, Mickey Mantle, Eddie Mathews, Willie Mays, and Babe Ruth. n3 A baseball fan and souvenir hunter named Joe Figone, waiting in a boat to  [*1610]  recover the ball from this much anticipated home run, fished it out of the water. n4

In our modern society, obsessed with artifacts of the famous, a 500th home run ball is a valuable trophy. In 1996 for example, Eddie Murray's 500th home run ball was auctioned off for half a million dollars. n5 Shortly after Bonds hit number 500 a law professor on the list serve "Lawprof" raised the interesting question, "by what legal theory does Joe Figone claim ownership and title to the baseball?" n6

This article began as a modest attempt to answer that question. I presented the substance of Parts I-III at the Benjamin N. Cardozo School of Law's symposium on the law of baseball, directed precisely at that question. n7 However, over the rest of the 2001 season two more "home run" events - Mike Piazza's 300th career home run and Barry Bonds's 73rd home run on the last day of the 2001 season - have forced me to add new sections to the article, and explore how life, or at least major league baseball, imitates theory. Before getting to these two controversies of 2001, we must first consider the question I just posed: by what theory did Figone claim ownership of the 500th home run ball, and by what theory might someone claim ownership of any baseball.

Ownership comes to the person who catches the ball by two different legal theories: the "common law of baseball," which is based on the traditions and evolution of baseball and the traditional law of abandonment. This is supplemented by what might be considered a "statutory claim," based on the posted or announced regulations - or "laws" - at some major league stadiums. The New York Mets, for example, have a stated policy that fans may keep the balls they catch. This may further be supplemented by a contract claim based on the warning on tickets that balls might be hit into the stands. n8 The Seattle Mariners deal  [*1611]  with both issues on their web site, which asserts:

 

 

The Mariners encourage guests to keep any balls hit into the stands. Batted balls and other items leaving the field can be dangerous, however, so we ask that guests stay alert at all times for balls or bats that could land in seating areas. If you would like to lessen this risk, the Mariners will exchange your ticket for one in the upper deck prior to the first pitch being thrown. Please do not attempt to retrieve balls directly from the field, because the ball could still be in play. Fan interference can cost the Mariners in runs scored. Fans interfering with a ball in play will be ejected. n9

 

 It seems obvious that the person who catches a home run ball has taken ownership of it. Nevertheless, the following investigation and analysis of this conclusion helps us better understand the nature of property in law, and at the same time allows us to see how in one more way, baseball mirrors our legal system and helps us understand the rule of law. n10

I. Who Might Own the Ball?

 

 Before turning to the law of abandonment and the common law of baseball, it is worth taking a moment to consider who might own the ball if the person who caught it, or in the case of Figone, found it first, does not. In part, this analysis will cut down on potential owners.

A. The Batter

 

 Of the possible owners, the person who has the weakest claim to the ball is the player who hit it over the fence. This is significant, in light of the claim by some pundits, as well as New York Mets catcher Mike Piazza, that the ball should be "returned"  [*1612]  to the batter who hit the home run.

The batter never owned the ball. He never had physical possession of it, and indeed, never directly touched it. His only contact with the ball was to touch it with a tool (his bat) in an attempt to force the ball to move away from him. Indeed, the entire goal of the batter was to make the ball go as far away from him as possible. In fact, he is paid to literally commit a "battery" on the ball to chase it from his presence. As such it is hard to subsequently argue, under any theory of law or possession, that the ball should be "returned" to the batter. He never had it in the first place; did not want it; and used all his might and skill to make it go away. Whoever might own the ball, it is clearly not the batter, who hit it, chased it away, and did everything in his power to remove it from his sight.

Some might make the argument that the batter has a claim to a ball because by hitting it, he has increased its value. This would be especially so for a milestone ball like a lifetime 500th home run ball or Barry Bonds's 73rd home run ball. The argument is that this "value added" interest accrues to the batter, perhaps in the same way that an artist adds value to a piece of paper by drawing on it. Some might also argue that this increased value might be like a patentable discovery, which would give the discoverer (or batter) a claim on the increased value. This argument seems inherently weak. Unlike the artist who might draw on a piece of paper, or even the famous person who might sign a credit card slip, n11 the batter has not added anything of his own to the ball.

It is clear that by hitting the ball the batter has increased its value, but this does not make the batter the owner of the ball or give the batter a claim to the increased value. Rather than being analogous to art, an autograph, a discovery, or an invention, the relationship of the batter to the ball is more like that of a celebrity to a place or event. It is perhaps similar to an inn, which asserts "George Washington slept here," or a restaurant that might set aside the plate or silverware used by Elvis or John Lennon, as a souvenir of something touched by the famous. Washington's night at the inn did not give him property claims in the inn; Elvis's eating soup at a restaurant did not give him a property claim to the soup spoon.

 [*1613]

B. The Catcher

 

 The catcher might have a claim to the ball because he was trying to gain temporary possession of the ball. In fact, however, the catcher did not gain possession of the ball, so he had no claim to the ball. Indeed, we know that if the catcher had gained possession of the ball, he would have immediately thrown it to the pitcher. n12 Thus, in his incomplete attempt to catch the ball, the catcher cannot claim an ownership interest in the ball. n13

C. The Pitcher

 

 The pitcher once had possession of the ball. In fact, he was the last one to touch it before it left the playing field (or in the case of Barry Bonds' 500th career home run, the stadium). But, the pitcher did not keep the ball; in fact, he threw it in the vicinity of the batter, in an attempt to turn temporary possession of the ball over to the catcher.

While possession may be important here, it is not the determining factor. The pitcher never actually owned the ball. His job and goal was to in effect "play catch" with the catcher, until the other side made three outs; then he would hand the ball over to the pitcher from the other team.

An alternative theory of the law, for both the pitcher and the catcher, is that they are simply employees of their teams and using a tool - the ball - provided by their employers for the purpose of the job. As such they can never have "owned" the ball. This analysis would also apply to the batter, whose job it was to hit this tool - the ball - which he certainly never owned. n14

D. Could Major League Baseball Own the Ball?

 

 Recently Ron Borges, a columnist for MSNBC, writing about the 73rd home run that Barry Bonds hit at the end of the 2001  [*1614]  season, asserted that the ball was "something that belongs to baseball - and Barry Bonds - if it belongs to anybody." n15

Mr. Borges did not offer any support for this assertion, and it is quite frankly difficult to figure out the basis for his claim. Surely the ball belongs to someone, or some entity. And, if it is not technically owned by anyone after it goes over the fence, then it is perhaps like a wild animal, over which the first hunter to capture, n16 kill, n17 mortally wound, n18 harpoon, n19 or even possess on his land, n20 can claim ownership. n21 Borges does not suggest who or what "baseball" might be - although the most obvious interpretation of this assertion is that he means it belongs to that entity known as Major League Baseball ("MLB"). For some home run balls, such as Barry Bonds's 73rd home run, this may indeed be a correct analysis. While home teams usually provide all baseballs for games, in the case of Bonds's record breaking home run, the specific ball pitched to Bonds apparently was not provided by the home team, the San Francisco Giants. Instead, when Bonds came to bat specially marked balls, apparently provided by MLB, were used. They had a marking and number on them that was only visible with a black light. The authenticity of these balls was certified by representatives from MLB as well as a representative of the Arthur Andersen Accounting firm.

Borges seems mostly to be complaining that there is a dispute  [*1615]  over ownership of the ball, and seems annoyed that it may have some great monetary value. We might indeed question the wisdom of paying large amounts of money for a home run ball. But, that is beside the point. Whether valuable or without much value, the ball must belong to someone.

It seems plausible that MLB might in the future assert ownership over balls. Because MLB provided the specific ball for the record breaking home run, MLB would have the legal right to assert ownership over that ball, just as a team might assert ownership over a baseball, as the Cleveland Indians once did. n22 MLB might require that all franchise owners take steps to retrieve these special home run balls and return them to the League; it might require that franchisees post signs that balls hit into the stands must be returned.

But, MLB has not done any of this and, for marketing reasons, if nothing else, is unlikely to do so. MLB clearly abandoned any claim to the Barry Bonds record-breaking ball. Any doubt about this is resolved by the procedures following the home run. After Barry Bonds's 67th home run, each ball and whoever held it at the time, were taken to a special room in the stadium where an MLB official and a representative of the Arthur Andersen accounting firm, authenticated the ball, marked it, and returned it to the person who had possession of it before it was authenticated. Barry Bonds never owned the home run ball or any other ball and can claim no ownership of the milestone home run ball. n23 Major League Baseball did own this home run ball, before it was hit, but clearly relinquished any claim to it when it sailed over the fence. For other baseballs, not supplied by major league baseball, a similar analysis would be applied to the home teams. They supply the balls for the games, and they could claim ownership in the balls if they chose to do so. However, since the mid-1940s, no team has in fact done so. Rather, teams have explicitly or implicitly allowed fans to keep balls. n24

 [*1616]

E. The Real Owner, Before the Ball Was Hit

 

 If neither the batter, the catcher, the pitcher, nor MLB ever owned the ball, or had more than a temporary possession of it, then who did own it? The answer, of course, is obvious: the home team. Each home team supplies balls for the game. Before the game they are turned over to the umpires, who inspect them, rub them with special mud from the Delaware River, n25 and prepare them for the game.

In the past few years the home teams, in cooperation with MLB, have begun to use specially numbered balls when a player is approaching a significant home run record. This program, known as the Home Run Chase Authentication Program, began during the 1998 season when both Mark McGuire and Sammy Sosa were competing to set a new home run record. Towards the end of the 2001 season, when Bonds was closing in on the new record, Major League Baseball began to provide balls to be pitched to Bonds. These balls, authenticated by the accounting firm of Arthur Andersen, were individually numbered and the umpires put them in play in sequence, thus insuring easy identification of the record-breaking ball. Since all balls used by MLB are essentially fungible, this precaution is the only way to authenticate the provenance of any particular record-breaking ball. Significantly, neither the teams nor MLB have any systems for keeping track of these specially numbered balls - or for that matter any balls used in a game - once they are put into play. There is no system in place for retrieving these specially numbered home run balls if they are hit into the stands, either as foul balls or home runs. But, these specially numbered balls do allow MLB to identify a record-breaking ball when it ends up in the hands of a fan. The willingness of MLB to identify a ball caught by a fan indicates that MLB accepts that fans who catch balls are entitled to keep them. n26 Indeed, in the case of Barry Bonds's 73rd home run ball, representatives of MLB and Arthur Andersen identified the ball and declared it to be the right ball.

Whether specially numbered or not, the home team (or possibly Major League Baseball for record breaking balls) remains the owner of balls, as long as they are on the playing field. The home team could post signs requiring that fans return balls hit into the stands. But, no home team has done this in recent memory; on  [*1617]  the contrary, as I demonstrate below, for more than half a century teams have allowed, and in fact, encouraged, fans to keep balls that are hit into the stands. Some teams post signs indicating this is their policy.

Teams, in fact, warn fans that balls may be hit into the stands and that these spheroids, traveling at high speeds, are dangerous. Waivers to this effect appear on the backs of some tickets. If the teams wanted the balls returned, this waiver would presumably say so; the fact that it does not seems to be an implied waiver by the team of any claim to a ball hit over the fence.

Two recent trends in baseball illustrate the "ownership" of the ball. In the last decade fielders catching foul balls have gently tossed them into the stands, or actually handed them to fans close to the field. This clearly reflects a management decision - a very smart management decision - that the good will gained by such a gift to the lucky fan more than offsets the value of the ball, which by this point is too scuffed to be put back into play, and can only be used for practice.

Another trend, first started in Wrigley Field, home of the hapless Chicago Cubs, n27 is for home team fans to toss back on to the field home run balls hit by the Cubs's opponents. This is a not terribly subtle attempt to show disrespect for the visiting team, essentially making the point that "we could keep your ball, but we will not stoop so low." Cubs fans do keep home run balls on those rare occasions when Cubs players actually hit them. n28 Two teams have dealt with this issue, in opposite ways, on their web site. The Colorado Rockies tell fans: "At no time should a foul or home run ball be thrown back on the field. Violators will be subject to ejection." n29 On the other hand, the San Francisco Giants web site tells fans: "In addition, any fan entering the field of play or throwing objects in the stands or onto the field, with the exception of home run balls, will face arrest and prosecution." n30

The bottom line here is that the management clearly "owns" the ball while it is on the field and is in fact empowered to toss used balls (foul balls) into the stands; and that once a ball is in the  [*1618]  stands, whether because it is hit there or tossed there, the fans claim it belongs to them. The fan's theory of ownership must be based on the "abandonment" of the ball by the management. This has been a precedent - everywhere in baseball - for more than half a century, and this has been the practice for most of Major League Baseball's history. Only once in recent years, the 300th home run ball hit by Mike Piazza, has there been any attempt by the home team to claim the ball.

II. Abandonment

 

 The law of property has historically considered that property once legally possessed by someone can lose its status as being "owned" if the possessor or owner abandons it. According to one treatise, "Abandonment occurs when there is "a giving up, a total desertion, and absolute relinquishment' of private goods by a former owner." n31 Such goods "may be restored to private property by subsequent reclamation," n32 either by the owner or some other person, a "finder." n33

Not all property can be abandoned. Statutory regulations may prohibit abandonment. For example, in the antebellum South most states did not allow a master to "abandon" a slave, by freeing the slave. Indeed the most important fugitive slave case heard by the Supreme Court, Prigg v. Pennsylvania, n34 turned in part on whether a slave couple became free simply because the master allowed them to live as free people. Under Maryland law the slaves were not free, and thus when their daughter left Maryland she became a fugitive slave. Free blacks were considered dangerous to the slave South, and thus their increase was strictly regulated.

Modern law also prohibits abandonment of some kinds of property. Most jurisdictions prohibit the abandonment of pets, especially dogs, who when left to run free can become dangerous. n35  [*1619]  Modern environmental regulations also prevent the abandonment of certain kinds of property and hazardous waste. n36

Similarly, in most places it is illegal to abandon an automobile on a highway or street. This line of discussion can be taken a step further, noting that abandonment of many kinds of property can be seen as littering, dumping, or some other nuisance. n37

Can this analysis help us think through the problem of the home run ball that leaves the stadium? Plausibly a baseball team might be held liable for the cost of removing its litter from the streets or, in the case of the San Francisco Giants, the water. Can we charge Barry Bonds with being a polluter, for depositing unwanted spheroids in San Francisco Bay? Can we fine the San Francisco Giants for creating an environmental nuisance by hiring people, and indeed rewarding them, for polluting the Bay? Has the team become a public nuisance by encouraging its employees to litter the streets of San Francisco, or the Bay, with baseballs? If someone, especially a child, drowns in the Bay trying to retrieve a ball, or if a child is hit by a car while chasing down a ball, can the team be sued for creating an "attractive nuisance" or even be prosecuted for negligence?

Assuming that a baseball in the Bay is not a form of pollution, does it constitute abandoned property?

There seem to be two categories of abandonment. The most obvious is "specific intent of desertion," such as throwing property away. This occurs when the owner "casts away or leaves behind his property." n38 Objects of value, or no value, left in a dumpster, or purposefully left behind in a hotel room, for example, would fit this description. Hitting a ball over a fence probably would not fit this description. On the other hand, the recently adopted practice of tossing a foul ball into the stands surely illustrates "specific intent of desertion." n39

In the second category of abandonment the intent is determined by the failure of the owner to retrieve or reclaim  [*1620]  property "after a casual and unintentional loss." n40 One commentator cites the example of the owner of a mule who "left it where it lay, stating it was of no value" after it had been injured, but not killed, by a railroad train. n41 This seems analogous to the home run ball, but this may not tell the whole story.

In the example of the injured mule, the owner articulated a specific intent to abandon the property, and in fact declared that the mule ought to be killed, presumably to put it out of its misery. n42 Certainly that is not the case with the home run ball. The stadium announcer would not likely say something to the effect of "Well folks, that ball is out of the stadium, and of no use to this ball team. Whoever catches it can keep it." Some stadiums of course do have signs indicating fans can keep balls, but short of that, we must find this right through a deeper analysis of the law of abandonment.

Thus, if there is an abandonment in the home run going over the fence, it must be a function of what might be called a constructive abandonment. In an earlier time, the baseballs themselves were relatively valuable n43 and baseball teams asked fans to return balls, especially foul balls. In the early 1940s, the Cleveland Indians required fans to return home run balls. The legendary Bill Veeck, who bought the team in 1946, used this policy to illustrate the utter failure of the previous management, writing: "When I say that the Cleveland management still demanded that balls hit into the stands be thrown back onto the field, I am saying it all." n44 Doubtless, one of the reasons for Veeck's great popularity in Cleveland n45 was the abolition of this incredibly stupid policy. Certainly no team in more than half a century has required fans to return balls. n46

Furthermore, returning home run balls would make no logical sense. Once the ball is hit out of the stadium it is a dead ball, no longer in play. The ball could theoretically be returned to an umpire, who would put it back in play by handing it to the catcher  [*1621]  then on the field. Realistically, such a ball would probably not be put back in play because it was most likely damaged by going over the fence, hitting wood, seats, etc. In the case of the Barry Bonds home run that went into McCovey Cove, there was even more reason to think it could not be put in play. It was soaking wet, perhaps waterlogged, by the time it was retrieved. It would have been impossible to put it in play.

Consistent with this notion of a constructive abandonment is the fact that with only a few exceptions, like the one Bill Veeck described, no team in memory has had a policy of attempting to retrieve balls. This is consistent with the notion of abandonment. Property is abandoned if the owner knows where it is, and does not go after it. n47 This is surely an aspect of the common law of baseball.

III. The Common Law of Baseball

 

 For at least the last eighty years, almost all fans attending professional baseball games in the United States n48 have assumed they have a right to take home any balls they catch or retrieve in the stands. n49 Many teams encourage this policy, urging fans, especially children, to bring gloves with them. Advertisements for MLB similarly push this notion, showing fans entering the stadium with gloves. Stadiums have signs and rules about what fans can bring with them. Beer is banned in some stadiums; others ban any food at all, except perhaps baby food. In states where concealed weapons may be carried with impunity, such as Texas and Oklahoma, I assume that both major and minor league teams can, and may, post signs banning guns. But as far as I know, no team bans taking gloves into the stadium.

At least one stadium, Detroit's Commercia Park, has codified the common law of baseball. The stadium has posted signs  [*1622]  indicating fans are free to keep foul balls and home run balls. n50 As noted earlier, the Seattle Mariners deal with the issue on the team's web site, which states under the heading "Foul Balls & Home Run Balls & Bats": "The Mariners encourage guests to keep any balls hit into the stands. Batted balls and other items leaving the field can be dangerous, however, so we ask that guests stay alert at all times for balls or bats that could land in seating areas." n51

Other stadiums do the same. Other teams encourage fans in other ways to catch balls. The public address announcer at Baltimore's old Memorial Stadium used to declare "Give that fan a contract," whenever someone in the stands caught a ball. n52 The San Francisco Giants use their web site to direct fans as to where home runs hit by Barry Bonds are most likely to land. n53

This common, and now statutory, law of baseball can be compared or contrasted with the common law of other sports. As my colleague Kate Waits has pointed out, professional hockey teams allow fans to keep pucks that go into the stands. n54 Perhaps this is due to the relatively small cost of pucks, or possibly the extremely volatile nature of hockey fans. Who would dare take the puck away from the rowdies who sometimes populate the stands and occasionally get into fights with the players? On the other hand, the more genteel tennis spectators return balls to ushers, despite the fact that professional players, like John McEnroe, have been arguing that U.S. Open officials should make the game more fan-friendly by allowing those who catch balls to keep them. n55

For nearly half a century football teams, on the other hand, have required the return of their much more expensive balls if they go into the stands. n56 Demanding the return of the ball may have originally have been a function of the relatively higher cost of these balls, but this surely does not explain the practice today, and this explanation may not have ever really explained the practice. In the 1940s and 1950s, when the sport made far less money, fans could keep footballs kicked into the stands on field goals and extra points. This changed in the 1960s, when the teams put up nets to  [*1623]  catch the balls. Balls that go over the net are retrieved by ushers. n57

Basketball teams have always required that balls be returned. Initially this may have been due to the cost of the balls but, given the vast amount of money involved in college and professional basketball today, this answer makes no sense. Rather, the returning of the ball is part of the culture and mystique of the game. Fans actually toss the ball back to a referee or player, thus in a sense becoming part of the game. That is part of the common law of basketball.

Yet, as I noted earlier, there is a practical aspect to the return of basketballs and footballs. They can be returned to play. A scuffed football is a scuffed football. A scuffed baseball is an illegal ball that the umpire will immediately throw out of the game. Indeed, when a ball is hit the physical properties of the ball are altered, thus giving the pitcher an unfair advantage. n58 This is why spitballs and other marked up balls are illegal. Thus, the modern rules of baseball make the ball useless once it leaves the playing field. So, the team abandons it.

There is one other plausible reason for returning footballs and basketballs, but not baseballs. This goes to the nature of the games and their rules. Baseball players try to hit balls into the stands; that is part of the game, and ever since the appearance of Babe Ruth, this has been a central focus of the game. And ever since Babe Ruth, fans have been keeping home run balls. Indeed, baseball is the only sport where the object of a player is to make a ball go outside the playing field. Neither football nor basketball players want to send the ball into the stands. A football kicked for a field goal or extra point may end up in the stands, but that is not the goal of the kicker, but only a possible consequence. This differs from the batter, who tries, with all his might, to propel a baseball over the wall and into the stands.

Indeed, one difference between baseball and all other sports is that in no other sport is a player or team rewarded for intentionally sending the ball into the stands. n59 In most cases a basketball, football, soccer ball, tennis ball, or hockey puck only ends up in the stands because of the failure on the part of the player to accurately throw a pass, shoot at the basket or goal, or return a serve from an opponent. n60 In some games, like basketball  [*1624]  or soccer, sending the ball into the stands costs the team possession of the ball and gives the other team an opportunity to score. Only in baseball can a team score by putting a ball into the stands.

IV. Mike Piazza and the Mets

 

 During the Summer of 2001, New York Mets star Mike Piazza hit his 300th career home run. This home run led to an event that is unprecedented in recent baseball history, and one that according to one New York Post reporter was shameful. n61

The story is sad, and indeed disgraceful. On July 13, 2001, Mets catcher Mike Piazza hit his 300th home run. A fan, Rafael Vasquez, caught the ball and gave it to his six-year-old daughter, Denise, who was a great Piazza fan. Vasquez was immediately surrounded by at least ten Mets security guards who forced Denise and Rafael Vasquez, against their will, to give them the ball, which they later gave to Piazza. The stated policy of the Mets is that fans may keep the balls they catch. The guards apparently promised Vasquez that he would get the bat Piazza used, autographed by the hitter. But, it later turned out that he got a different bat. Piazza asserts "I'm very careful with my bats," noting he has them locked up after every game. He cited the "growth of the memorabilia industry" as one of two reasons, along with the increasing shortage of "good wood" for bats, to explain why he is so careful with them. n62 Apparently he is so concerned about the "memorabilia industry" that he was unwilling to keep an agreement with a six-year-old fan and her father. This is in sharp contrast to Barry Bonds, who, at the very end of the 2001 season, apparently sought to purchase his record-breaking home run balls from the fans who ended up with them.

The story led to some television coverage, and some newspaper stories, n63 but later died down. The Mets eventually arranged for Denise Vasquez to meet Piazza. The Mets gave her a few inconsequential souvenirs, and that was the end of it. She did  [*1625]  not get to keep the ball she once had, and neither Piazza nor the Mets offered to pay her for its value. Piazza claimed to know nothing about the controversy until weeks after the ball was seized by Mets security guards. He claimed that he simply wanted the ball for his trophy case. "That's a personal heirloom for me" he later told a reporter. n64 Knowing it would be an "heirloom," Piazza had arranged to have the Mets security forces seize the ball. Once it left Denise Vasquez's hands, she never had a chance to get it back.

Legally, this seems like a strong-arm robbery by the New York Mets. Could Vasquez have resisted a phalanx of security guards? It is unlikely. Moreover, the actions of the Mets security forces apparently violate "Shea's policy that says fans can keep balls they catch." n65

Vasquez would have a solid case against the Mets for conversion or trespass, as well as a possible claim for battery. There might also be civil fraud issues here. If the Mets organization sells tickets to fans under a policy that allows them to keep balls hit into the stands, it is not unreasonable to argue that the team committed fraud. Major League Baseball advertises itself as a sport in which the fans catch the home run balls and keep them. Given the behavior of the Mets, there may be an issue of false advertising, with both the team and Major League Baseball having liability.

Defenders of Piazza and the Mets argue that a ticket to a ball game is not an invitation to vast enrichment. A baseball ticket, they claim, is not a "lottery ticket." However, in fact, it is advertised as just that. You can "catch" the ball and keep it. Just as a bigger possible payout attracts more purchasers of lottery tickets, so too might the possibility of catching a valuable baseball attract more fans. As a player gets close to a milestone home run more fans may come out to watch. Some may even choose seats far in the outfield, not great for seeing the game, but better for catching a valuable ball. The ticket to a game is in fact a lottery ticket. Sometimes the payoff is small: a foul ball hit by an insignificant player. Sometimes it is larger: a home run by a major slugger. And every once in a while it is like a huge powerball lottery pay off. In a sense, Denise Vasquez won the powerball, and the Mets security forces grabbed the winning ticket right out of her hand.

Even Justice Oliver Wendell Holmes, Jr., who did not think  [*1626]  baseball was an aspect of interstate commerce, n66 did concede it was "the business of giving exhibitions." n67 It is clearly a business, as everyone knows. It is essential to that business that fans come to the park. One lure is the chance of catching a ball and keeping it. The Mets and Mike Piazza violated the implicit contract with fans, as well as stated Mets policy, by strong-arming a ball away from a fan. Such an action bodes poorly for baseball and for the future of the game.

As with the player strikes and management lockouts, the absurdly high salaries, and the rising cost of tickets and food at the game, n68 the greed of owners and players threatens the game. If the next Mike Piazza wants an "heirloom" that he never owned, possessed, or had control over, let him buy it on the open market like any other collector. If a lucky fan catches a lottery ticket, or fishes one out of San Francisco Bay, the players and the owners should be thrilled.

For every ticket purchaser who catches a valuable ball, there are hundreds of thousands - indeed millions - who do not. But they buy tickets of games, hoping they might.

For most of the history of professional baseball, the common law of the sport has been one of first possession. The first person to catch the ball, or in the case of Figone to fish it out of the water, has been considered the owner. This has all sorts of analogies to property law, including the old law of homesteading and mining claims. Without going into those analogies, this common law development has been a useful rule of law, and profitable rule, for professional baseball. Unfortunately, the New York Mets n69 have substituted the rule of law for the rule of the playground bully. Ten guys can take a ball from a six-year-old girl. And so they did.

V. Barry Bonds' 73rd Home Run: When Life Imitates Theory

 

 On the last day of the 2001 baseball season Barry Bonds once again hit a home run that raised property issues. This was his 73rd of the season, surpassing Mark McGuire's record of 70 home runs  [*1627]  in a season. This ball, also hit in PacBell Park, remained in the stadium, and was speared by Alex Popov, a longtime Giants fan and Berkeley restauranteur. A local television news camera captured the catch for posterity.

Within seconds of catching the ball Popov was thrown to the ground and pounced on by at least ten fans. Popov screamed for help, while the Giants security forces did nothing. A minute or two later, another fan, Patrick Hayashi, emerged from the pile with the ball in hand. Hayashi now claimed to own the ball. The Giants certified that he had the right ball, but avoided the ownership issue.

Shortly after this attack Popov initiated legal proceedings to prevent Hayashi from selling the ball, which had an estimated value of one to three million dollars. On October 24, 2001 Judge David A. Garcia of San Francisco Superior Court, a former full-time law professor, issued a temporary restraining order preventing Hayashi from selling this baseball. n70 This order was made permanent on November 28, 2001, pending a trial on the ownership of the ball. n71

The lawsuit over the ball generated national and international coverage. Radio and television networks in the U.S., including national programs like The Today Show and All Things Considered, had stories about the case. Radio programs in Scotland, Ireland, and New Zealand had stories about the case, while the New York Times, n72 Los Angeles Times, n73 the International Herald Tribune, n74 and The Times of London n75 covered it.

The lawsuit raises a novel question about the nature of the home run ball. It is no longer about whether the team, or the batter, or the fan owns the ball. Barry Bonds has made no claim to the ball; nor has the San Francisco Giants. The question is, which fan owns it.

 [*1628]

A. Fan Behavior and Balls in the Stadium

 

 Films clearly show Popov with the ball in his glove, after which he was covered by a crowd of fans. What happened under this pile of humanity is in dispute. What is not in dispute is that Popov had the ball in his glove, he was covered with people, and minutes later Hayashi had the ball.

Some sports commentators and fans have argued that the rule of ownership should simply be one of "finders keepers." Hayashi found the ball, so he is entitled to it. These people argue that Popov lost the ball in a "scrum," or ask "what was his time of possession," implying that he was like a tight end, who caught a football but was tackled and dropped the ball before he could "control" it.

Such analogies do not work, however, because the fan in the stadium is not a "player" and catching a ball in the stadium is not part of the sport. n76 Purchasing a ticket to baseball game is not an invitation to be tackled, jumped-on, mauled, or in any other way assaulted by other fans.

Patrick Hayashi's expert witness is Rich Garcia, a former major league umpire. Garcia notes that Popov caught the ball in what is called a "snowcone catch," with part of the ball sticking out above the webbing of the glove. Although such catches are perfectly acceptable in baseball, providing the fielder does not drop the ball, Garcia argues that "if the rules of baseball applied, as they should, then Mr. Popov never actually caught the ball." n77 The problem with this analysis is that it is not clear why the "rules of baseball" should apply. Popov is not a baseball player, and he was not on the playing field. However, even if the rules of baseball did apply, Garcia's argument makes no sense. Garcia is quoted as saying that Popov did not catch the ball "cleanly" and thus it was "fair game" for someone else to catch it. n78 This is a truly odd position for an umpire, since in baseball there is no such thing as a ball being "fair game." Fielders, who are on the same team, do not compete with each other in catching a ball; and no one knocks down a fielder while he is catching the ball. One can only wonder what "call" Garcia would have made in a game when a fielder speared a ball in a snowcone catch, as Popov did, and absent a  [*1629]  crunch of bodies knocking him down, held the ball up, in the glove, for all the world to see. Would Garcia have ruled the runner "safe" on a caught fly ball? This seems unlikely.

It is true that if a fielder catches a ball and then instantly drops it, the batter is not out. But, in baseball the other team - in this case Hayashi and the other fans - cannot interfere with the fielder. Indeed, under the rules of baseball if the batter or runner interferes with the fielder, the player interfering is automatically out. Thus, if we actually applied the rules of baseball, Popov would have been credited by the official scorer with a put out for catching the ball because the other players would have been "out" when they interfered with him while he was in the process of catching the ball.

B. The Analogy of Property in Animals

 

 The discussion in the last paragraph reveals the absurdity of attempting to apply the rules of baseball to a fan catching a ball. There is, however, a well settled rule of property law - the law of wild animals - that does shed light on this case and indicate who should own the ball.

The analogy makes sense because the home run ball, once it goes over the fence, is like a wild, unclaimed creature. It is much like a fox, elk, or whale, being hunted, not by people with guns or harpoons, but by fans with gloves. Just as the whaler hopes to spear a whale, the fan hopes to spear the ball. Similarly, like an animal, the ball has the power of movement, and like the unskilled hunter or whaler, the unskilled fan might not be able to actually catch and hold on to the ball.

Nearly a century ago a scholar accurately summarized the legal standard for ownership of wild animals: "the right of the first taker to the ownership of wild animals is recognized as the law of today." n79 The case law is clear on this issue. The classic American case, Pierson v. Post, n80 focused on the issue of who actually first shot or possessed a wild fox, and not, as Post claimed, who first saw or chased it. Popov, Hayashi, and a number of others pursued the ball, as Post did the fox, but Popov was the first to grab it; having done so it was his, unless the ball somehow escaped on its own volition or through Popov's inability to control it. But, this was clearly not the case. Absent the crush of bodies, committing  [*1630]  (no pun intended) a battery on Popov, it seems likely he would have held the ball.

The whaling industry provides a number of useful precedents and analogies for determining ownership of this particular home run ball. At the outset it might be noted that the whaling industry had its own common law rules for determining the ownership of a whale. These are analogous to the home run ball.

The issue for the whaling industry in disputes over a whale was what constituted a "fast fish." The English Rule seems to be that "a fish is to be considered a fast fish which is attached by any means (such as the entanglement of the line around it, etc.) to the boat or the first striker, though the harpoon does not continue in the whale's body." n81 Under this theory, Popov had a "fast fish" when the ball entered the glove and was in its webbing. Once caught, and therefore a "fast fish," the ball was his. Anyone taking it from him at that point was committing theft.

The American case law also supports this position. In Ghen v. Rich n82 the United States District Court in Massachusetts held that ownership of a whale vested in the ship that killed the whale, even if that ship did not take immediate possession of the whale. Similarly, in Bartlett v. Budd n83 the same court held that if a whaling ship killed a whale and marked it, but did not immediately haul it aboard, that ship still owned the whale, and a second vessel could not claim it. The application of these two cases to the Bonds baseball seems obvious. Popov, having caught the ball, owns it, even if he later puts it down or drops it. Once having possessed it in his glove, it became his. Even if he put it down, or it was jostled out of his hands by someone else, he did not abandon it or give it up. In this way, he might be like the whalers in Bartlett v. Budd, who killed a whale, marked it, and left it anchored to be picked up later when the seas were calmer. Popov snared the ball and possessed it. He did not abandon it when it was knocked from his glove.

An intriguing precedent along this line is Swift v. Gifford, n84 which involved two ships chasing the same whale. The court ruled that the whale belonged to the ship which first put a harpoon in the whale. This case was limited to the whaling industry, but the analogy is useful. Having the ball in a glove is analogous to  [*1631]  harpooning the whale. Thus Popov gained ownership when he caught the ball and actually had it in his glove.

The parallel of whale hunting is also useful for the fan who fails to catch the ball. If a whaling vessel's harpoon misses or fails to stay attached to a whale, then that ship could make no claim of ownership. Similarly, if a fan touches the ball, but the ball simply bounces off his glove and rolls away, the fan could not be able to claim ownership of the ball.

The whaling rules were developed to deal with a specific industry and problems specific to that industry. The rules worked because they fulfilled the needs of the industry. Any other rule would have led to chaos on the high seas, with crews of one vessel potentially battling those of another for a valuable prize. Crews from one ship might have cut the ropes of harpoons belonging to another ship, setting the stage for violence and disorder. The rule that developed - the first to harpoon the whale claims the animal - regulated the industry and avoided conflict.

The law pertaining to owned animals that escape may also be useful here. A well known case asserts that it "is wholly at variance with our views of right and justice" if a pet bird "should accidentally escape from its cage to the street, or to a neighboring house, the first person who caught it would be its owner." n85 This helps explain the law of baseball. If the ball is possessed by someone, and is set down, and rolls away; or is forced out of his hands by someone else, and rolls away, it would be equally "at variance with our views of right and justice" that the first person to pick up the ball could now claim ownership over it.

A rule of baseball that says the person who catches the ball keeps it works much like the whaling industry rules. It avoids confrontation and violence, and prevents the wholesale mugging of someone who catches the ball. It would not be a rule of "first touch," just as the rule in Pierson v. Post was not a rule of first to sight or pursue. Similarly, the whaling rules gave claim to the first vessel to harpoon the whale; not the first vessel to throw a harpoon at the whale. In the same way, the person first to touch the ball cannot claim ownership; only the first person to catch it. Presumably if the ball hits the glove, and then bounces out, there is no claim because there was no catch. But, if the ball bounces out because it is forced out by others, or pulled out by others, then the default rule must be that the person who first had it in his glove is the owner. Otherwise, the rule of law is replaced with the rule of the jungle. That force and might are all that matter.

 [*1632]  There is a logic to this analysis. If people who do not catch the ball can claim it by forcing it out of the glove of the fan who did catch it - as is the case with Popov - then the "rule" allowing this will encourage violence and mayhem. No fan can be safe with a ball because the next fan, the bigger fan, can jostle it free. But, if the rule is that the person who catches it, and holds it, is the owner, then other fans will have a great incentive to sit back and wait, hoping that the person who catches it is unable to hold it. The whaling analogy might work like this: if the harpoon falls out of the whale because of the power of the whale, then the vessel that owned the harpoon cannot claim the whale. But, if the harpoon falls out through the malicious actions of other ships, then the first ship to harpoon the whale must be able to make its claim stick. Similarly, if the ball falls out of the glove because of the power of the ball (or the poor skills of the fan) then the ball is free for the taking; but if other fans force the ball out, then the ball must be returned to the person who originally caught it. This rule would create order and peace in the stands, while preserving the excitement of fans who might catch a home run ball.

VI. Conclusion

 

 Oliver Wendell Holmes, Jr., did not understand baseball, nor did he probably like it much. n86 His only decision on the subject n87 is clearly erroneous. n88 But, his famous insight into the common law - "The life of the law has not been logic, it has been experience" n89 - surely applies to the law of baseball. The experience of baseball is that teams abandon balls hit into the stadiums and the fan who catches the ball keeps it. The experience of Mike Piazza's 300th home run ought to be that if a player wants a ball back, he should buy it on the open market, using some of his vast salary to compensate the fan for relinquishing a treasure.

The experience of Barry Bonds' 73rd home run ball is that the fan who catches the ball should be able to keep it, and that other fans must, for the safety of all, abide by this result. As this article goes to press, the suit of Popov v. Hayashi is set for trial to begin  [*1633]  on October 7, 2002 - a year to the day after Popov first caught the ball. The outcome ought to be one that favors a rule of law that encourages civilized, non-violent behavior in the stands.

 

Legal Topics:

 

For related research and practice materials, see the following legal topics:

Criminal Law & ProcedureCriminal OffensesCrimes Against PersonsAssault & BatterySimple OffensesGeneral OverviewEvidenceAuthenticationGeneral OverviewReal Property LawTitle QualityAdverse Claim ActionsEjectment

 

 FOOTNOTES:

 

 

n1.  I thank the following baseball fans: New York attorneys Gianna McCarthy, David Greene, and Martha Rix; Professor Bunji Sawanobori of Nanzan University, Nagoya, Japan; Providence attorney Eugene G. Bernardo, II; Cleveland attorney Joan H.D. Andrews; Tulsa attorney Jeff Chasen; my Tulsa Law School colleague Ray Yasser; my research assistant Sarah Teal; and Harvard Law students Trevor Livingson and Rob Jackson, and future law student Matt Abt for their input on this article.

I received other comments and communications from Matthew Harrington, Spencer Waller, Robert Goldman, David Olener, Sam Higginson, Joshua Kobrin, Judy Moon, Martin Triano, Michael Moore, Doug Linder, Madeleine Plasencia, Robert Jarvis, Steve Tober, Shalom Berger, Rabbi Uri Cohen, Rabbi Eleazer Finkelman, Sharon Fischlowitz, Corey MacKinnon, Robert Jarvis, and Al Borphy.

I also thank the following legal scholars who posted various comments on this issue on the internet site Lawprof or who discussed this with me: Marla Mansfield, Kate Waits, William Wiecek, Michael Olivas, Robert Chapman, Matthew Harrington, James Alexander Tanford, David Langum, Herbie DiFonzo, Stephen Calkins, Craig Oren, Craig Albert, Steven Semeraro, David Sorkin, Mark Scarberry, Richard K. Neumann, Keith Rowley, Maura A. Flood, Dennis Hirsh, John Steele, Jerry L. Anderson, and Neil Bernstein.

 

 

n2.  McCovey Cove is actually a slew that empties into the bay. It is named in honor of the great San Francisco Giants player, Willie McCovey.

 

 

n3.  As of the beginning of the 2002 season the following players had hit 500 home runs: Hank Aaron, 755; Babe Ruth, 714; Willie Mays, 660; Frank Robinson, 586; Mark McGwire, 583; Barry Bonds, 574; Harmon Killebrew, 573; Reggie Jackson, 563; Mike Schmidt, 548; Mickey Mantle, 536; Jimmie Foxx, 534; Willie McCovey, 521; Ted Williams, 521; Ernie Banks, 512; Eddie Mathews, 512; Mel Ott, 511; and Eddie Murray, 504. See The 500-Homers Club, at http://www.espn.com (last visited Apr. 13, 2002).

 

 

n4.  See Jim Herron Zamora et al., Giants' Fan Now a Real Ball Hawk, available at http://www.mccovey-cove.com/headlines.htm (last visited Jan. 9, 2002).

 

 

n5.  See Carrie Muskat, Where Have All the 500 Balls Gone?, available at http://www.mlb.com (Apr. 8, 2001).

 

 

n6.  James Alexander Tanford, in Lawprof posting, lawprof@chicagokent.kentlaw.edu [hereinafter Lawprof posting] (last visited Apr. 19, 2001).

 

 

n7.  Symposium, Batter Up! From the Baseball Field to the Courthouse: Contemporary Issues Face Baseball Practitioners, 23 Cardozo L. Rev. 1597 (2002) [hereinafter Cardozo Baseball Symposium].

 

 

n8.  The Colorado Rockies address this issue on their web site. The policy is apparently grounded in state law. The web site states:

 

 

Ticket holders assume all risks and danger incidental to the game of baseball, whether occurring prior to, during or subsequent to the actual playing of the game; including without limitation, injury from thrown bats, thrown or batted balls and spectator conduct. The Colorado Rockies cannot be held responsible for the conduct of other Guests when attempting to obtain a foul or homerun ball. Ticket holders agree that neither the Rockies nor the opposing team, their respective players and agents shall be liable for injuries or damages caused by such risks or dangers. (State of Colorado/City of Denver Spectator Act, 7/1/93).

 

 Major League Baseball, Colorado Rockies Ballpark A to Z Guide, at http://www.mlb.com/NASApp/mlb/col/ballpark/col_ballpark_guide.jsp [hereinafter Colorado Rockies Ballpark Guide] (last visited Jan. 9, 2002) (implying that fans may go after, and keep, home run balls).

 

 

n9.  Major League Baseball, Seattle Mariners Ballpark A to Z Guide, at http://www.mlb.com/NASApp/mlb/sea/ballpark/sea_ballpark_guide.jsp [hereinafter Seattle Mariners Ballpark Guide] (last visited Jan. 9, 2002).

 

 

n10.  See Paul Finkelman, Baseball and the Rule of Law, 46 Clev. St. L. Rev. 239 (1998); Baseball and the American Legal Mind (Spencer Weber Waller et al. eds., 1995).

 

 

n11.  Pablo Picasso allegedly often paid for goods with checks, knowing that his autograph was more valuable than the items purchased, and thus the check would never be cashed.

 

 

n12.  However, in the event of an attempted stolen base, or an attempt to "pick off" a runner who was leading off of a base, the catcher would have thrown it to an infielder.

 

 

n13.  Thus, this is also true for any claim by the outfielder nearest to where the ball went over the fence as he too tried, but failed, to gain possession of the ball.

 

 

n14.  I thank Matthew Harrington of George Washington University School of Law for this insight.

 

 

n15.  Ron Borges, Battle of Ball from Bonds' 73rd HR Is Silly, at http://www.msnbc.com (Oct. 2001).

 

 

n16.  See, e.g., Young v. Hichens, 6 Q.B. 607, S.C.D. & M. 592 (1844) (Great Britain). The plaintiff in Young had "nearly encompassed the fish with a net" but had not fully surrounded the fish with his net, when the defendant scared the fish away and caught them himself. Lord Chief Justice Denman of the Court of the Queens Bench ruled that there could be no possession "until the party had actual power over the fish." Id. at 611. The implication of course is that once the party has possession, such as catching the fish in a net, or a ball in a glove, then the fish or the ball belongs to the person who caught it.

 

 

n17.  See, e.g., Pierson v. Post, 3 Cai. R. 175 (N.Y. 1805) (holding that the first hunter to kill a wild fox, rather than the hunter that first chased the fox, is entitled to keep the animal).

 

 

n18.  See, e.g., State of Montana ex rel. Visser v. State Fish & Game Comm'n, 437 P.2d 373 (Mont. 1968) (holding that the person who mortally wounds the animal is the owner, even if another person fires the fatal shot that actually kills the animal); Liesner v. Wanie, 145 N.W. 374 (Wis. 1914) (same).

 

 

n19.  See, e.g., Swift v. Gifford, 23 F. Case. 558 (1872) (finding that the first ship to harpoon a whale is entitled to the whale, even if another ship intervenes and kills the whale).

 

 

n20.  See, e.g., Keeble v. Hickeringill, 90 Eng. Rep. 906, 907, 908 (Q.B. 1707). Lord Chief Justice Holt of the Court of the Queens Bench ruled that Keeble had a property interest in the wild ducks that landed on the pond (or decoy as the case called it) that he had built for the purpose of hunting and capturing ducks. This was so, even though he had not yet reduced the ducks to his possession. Id.; see also A.W. Brian Simpson, Leading Cases in the Common Law 45-75 (1995).

 

 

n21.  See discussion infra Section V.

 

 

n22.  Bill Veeck & Ed Linn, Veeck - As in Wreck (1962).

 

 

n23.  Borges, writing in the wake of the attack on the United States on September 11 by Islamic terrorists, suggested that proceeds from the ball be given to various charities for the families of the firemen and others who died in the attack. In the process, Borges belittles the idea that anyone should be concerned with the ball. See Borges, supra note 15. This is a worthwhile point, which of course goes directly to the more serious question of why the United States is so obsessed with sports and the artifacts of sports. This is a profoundly important question, but not one I think Mr. Borges would really want to explore, since it would undoubtedly raise questions about his profession as a sports writer. We might equally ask why newspapers and other media pay so much attention to sports.

 

 

n24.  See infra note 44. The one exception to this was when Mets security personnel seized Mike Piazzas's 300th home run ball from a fan. See infra note 46.

 

 

n25.  This mud is known as Lena Blackburne's Baseball Rubbing Mud.

 

 

n26.  Amidst the controversy over the ownership of Barry Bonds's 73rd home run ball, the San Francisco Giants identified the ball as the Bonds home run ball immediately after the home run, and later MLB confirmed this identification.

 

 

n27.  The Cubs have not been in a World Series since 1945, and have not won a World Series since 1908. Reflecting on the Cubs's records over the years, we realize that any team can have a bad century.

 

 

n28.  It should be noted that over the years a few great home run hitters have played for the Cubs, including Ernie Banks and Sammy Sosa, but unfortunately, one great player does not a team make.

 

 

n29.  Colorado Rockies Ballpark Guide, supra note 8.

 

 

n30.  Major League Baseball, San Francisco Giants Ballpark A to Z Guide, at http://www.giants.mlb.com/NASApp/mlb/sf/ballpark/sf_ballpark_guide.jsp [hereinafter San Francisco Giants Ballpark Guide] (last visited Jan. 9, 2002).

 

 

n31.  Ray Andrews Brown, The Law of Property 8 (Walter B. Raushenbush ed., 3d ed. 1975).

 

 

n32.  Id.

 

 

n33.  In a baseball context, the "finders" could be either the person who first caught the ball or the person who first found it floating in the water. It might also be the person who first took possession of it, either by catching it, fishing it out of the water, or simply grabbing it as it rolled by.

 

 

n34.  41 U.S. 539 (1842); see also Paul Finkelman, Story Telling on the Supreme Court: Prigg v. Pennsylvania and Justice Joseph Story's Judicial Nationalism, 1994 Sup. Ct. Rev. 247 (1995).

 

 

n35.  On March 5, 2001, ten-year-old Rodney McAllister was attacked and killed by a pack of abandoned and wild dogs in the park across the street from his home in St. Louis. See Travis Mitchell, Who Let the Dogs Out?, Mo. Pets Mag., Summer 2001, available at http://www.mopetsmag.com/2001_Editorial.html (last visited Aug. 5, 2002).

 

 

n36.  See, e.g., 42 U.S.C. 14301 (2000) (describing the management of rechargeable and mercury batteries). Note that this law has nothing to do with "batteries" in baseball nor does it have anything to do with the assault and battery that the hitter commits against the ball.

 

 

n37.  Arguably, because a baseball has "value" it is not litter (litter being defined as "rubbish"). However, this is surely not the case with other property that has value. For instance, soda cans, which can be redeemed for a cash deposit, or sold as scrap, have "value," and yet when left by the side of the road, or on the street, are still considered litter.

 

 

n38.  Brown, supra note 31, at 8.

 

 

n39.  Id. at 8.

 

 

n40.  Id.

 

 

n41.  Id. (citing Kansas City, M & B. R. Co. v. Wagand, 32 So. 744 (Ala. 1902)).

 

 

n42.  See id.

 

 

n43.  The price of baseballs has remained relatively stable, and has not increased relative to inflation over this century. Thus, the baseball itself has little intrinsic value.

 

 

n44.  Veeck & Linn, supra note 22, at 88.

 

 

n45.  Aside from bringing the city a winning team. The Indians had not won a pennant for twenty-six years when Veeck bought the team; within two years the team was in the World Series. See id. at 118.

 

 

n46.  The one exception to this appears to be a recent action of the New York Mets in seizing Mike Piazza's 300th home run ball. This does not appear, at the moment, to be a new policy, but it has ominous implications. See Andrea Peyser, Piazza's Playing Hardball with 6-Year-Old Fan, N.Y. Post, Aug. 2, 2001, at 25.

 

 

n47.  Schley v. Couch, 284 S.W.2d 333 (Tex. 1955).

 

 

n48.  The situation in Japan has been somewhat different. In 1989 Robert Whiting noted that "stadium attendants retrieve all foul balls." Robert Whiting, You Gotta Have Wa 221 (1989). Whiting noted that at most parks the attendants "bark, "Give it back!'", but at Seibu stadium "they politely doff their caps, bow, and chirp, "We hope you weren't hurt.' Then they present a small gift in return for the ball.'" Id. Apparently, since then things have changed. A survey done for me in 2001 by Law Professor Bunji Sawanobori, at Nanzan University in Nagoya, determined that all stadiums allow fans to keep home run balls, and only two stadiums (Osaka Dome and Koshein in Osaka) still require that fans return foul balls. It is unclear whether the two holdouts reflect the economic conditions at those stadiums, or simply an inherent conservatism in Osaka, especially at Koshein, which is almost a sacred icon of Japanese baseball.

 

 

n49.  But see supra text accompanying note 44.

 

 

n50.  Stephen Calkins, in Lawprof posting, supra note 6, 19 Apr. 2001, 14:23:50.

 

 

n51.  Seattle Mariners Ballpark Guide, supra note 9.

 

 

n52.  Interview with Jeff Chasen, Esq., in Tulsa, Ok. (Sept. 1, 2001).

 

 

n53.  See San Francisco Giants Ball Park Guide, supra note 30.

 

 

n54.  Kate Waits, in Lawprof posting, supra note 6, 19 Apr. 2001, 12:22:11.

 

 

n55.  I thank my colleague and sports law expert Ray Yasser for this information.

 

 

n56.  In recent years, some professional football players have tossed balls into the stands after scoring touchdowns.

 

 

n57.  See Waits, supra note 4.

 

 

n58.  See Robert Kemp Adair, The Physics of Baseball (2d ed. 1994).

 

 

n59.  Or in other words, "why is this sport different from all other sports?"

 

 

n60.  It is possible to imagine a quarterback "throwing the ball away" into the stands in order to avoid a sack, but this in itself is outside the spirit of the game, and could be considered an infraction of the rules known as "intentional grounding."

 

 

n61.  Peyser, supra note 46. The first sentence of Ms. Peyser's article is "SHAME on Mike Piazza." I initially discussed this article at a symposium on baseball and the law, held at the Benjamin N. Cardozo School of Law. Sponsors of the symposium included the New York Mets Organization and Mr. Fred Wilpon. It certainly saddens me that the behavior of the Mets organization in this case requires that I must at least metaphorically bite the hand that fed me at the Cardozo symposium.

 

 

n62.  Me and My Bat,Sports Illus., Mar. 25, 2002, at 80, 84.

 

 

n63.  See, e.g., Wallace Matthews, Ballgate: Mike Was Right, N.Y. Post, Aug. 12, 2001, at 98.

 

 

n64.  Peyser, supra note 46.

 

 

n65.  Id.

 

 

n66.  See Fed. Baseball Club of Balt., Inc. v. Nat'l League of Baseball Clubs, 259 U.S. 200 (1922).

 

 

n67.  Id. at 208.

 

 

n68.  In 2002, the average family of four will spend $ 145.26 to attend a Major League Baseball game. See Scorecard, Sports Illus. Apr. 8, 2002, at 25, 26.

 

 

n69.  I should note that, while I still root for the Brooklyn Dodgers, I have transferred some of my loyalty to the other teams in New York. As such, I am a bit uncomfortable denouncing the team that helped make 1969, 1986, and 2000 such great years.

 

 

n70.  In the interest of full disclosure, I should point out that I gave an affidavit on behalf of Mr. Popov in this litigation based on an earlier draft of this article.

 

 

n71.  See Evelyn Nieves, A Custody Battle for a Baseball's True Owner, N.Y. Times, Nov. 28, 2001, at A16.

 

 

n72.  See id.

 

 

n73.  See Maura Dolan, Fight for Bonds' Home Run Ball Spills into Court, L.A. Times, Nov. 27, 2001, at A1.

 

 

n74.  See Evelyn Nieves, "I Got It!' No, "I Got It!' So Bonds's Record Ball Heads for Trial, Int'l Herald Trib., Nov. 29, 2001, at 16.

 

 

n75.  See Martin Fletcher, The $ 3m Baseball, London Times, Dec. 12, 2001, (Times 2) at 4.

 

 

n76.  A second obvious problem with these sports analogies are that they are analogies for the wrong sport. Except for tagging a sliding runner, baseball is not a contact sport; fielders are not tackled when they make a catch; there are no pile-ons and scrums to take the ball from a fielder.

 

 

n77.  Nieves, supra note 74.

 

 

n78.  Nieves, supra note 71.

 

 

n79.  Earl C. Arnold, Law of Possession Governing the Acquisition of Animals Ferae Naturae, 55 Am. L. Rev. 393, 394 (1921).

 

 

n80.  3 Caines 175 (N.Y. 1805).

 

 

n81.  John H. Ingham, The Law of Animals: A Treatise on Property in Animals Wild and Domestic and the Rights and Responsibilities Arising Therefrom 24 (1900).

 

 

n82.  8 F. 159 (D. Mass. 1881).

 

 

n83.  2 F. Cas. 966 (D. Mass. 1868).

 

 

n84.  23 F. Cas. 558 (D. Mass. 1872).

 

 

n85.  Manning v. Mitcherson, 69 Ga. 447, 450 (1883).

 

 

n86.  See Finkelman, supra note 10, at 246-47.

 

 

n87.  See Fed. Baseball Club of Balt. v. Nat'l League, 259 U.S. 200 (1922).

 

 

n88.  See Radovich v. Nat'l Football League, 352 U.S. 445 (1957). Justice Clark, writing for the majority, noted that Federal Baseball was "a ruling which at best was of dubious validity." Id. at 450. For other expressions of doubt about Federal Baseball, see Toolson v. N.Y. Yankees, 346 U.S. 356 (1953); Flood v. Kuhn, 407 U.S. 258 (1972).

 

 

n89.  Oliver Wendell Holmes, Jr., The Common Law 1 (1881).