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A Fight Between Fans Is In Court, But Neither Side Should Win


Wednesday, Oct. 23, 2002

It's America. So no one can be too surprised that the fate of the million-plus-dollar baseball whacked out of San Francisco's PacBell Park by Barry Bonds (arguably the greatest offensive player of all time) now rests in the hands of the courts.

The present saga pits two fans--Pat Hayashi and Alex Popov--against one another. Popov's version: Armed with a trusty rawhide glove, he stood peaceably and awaited Barry's longball, which he managed to "catch" in the outer webbing of his glove. A scrum ensued in which Popov was assaulted by other fans (including Hayashi, who is also accused of biting another ball-seeking fan), and the ball popped loose. After a vicious scramble that makes the one depicted by Don Delillo's Pulitzer-prize winning novel Underworld look like a game of duck-duck-goose, Hayashi emerged with the ball and was escorted out of the stadium.

Hayashi's version: He just happened--through no act of violence--to spot and pick the golden ball up from the peanut-shell-laden stadium floor.

Initially, Judge David Garcia ordered the ball turned over to the court, in order to prevent Hayashi from selling it to the highest bidder. The two sides marshaled lawyers, law professors, and even ex-Major League umpires on their respective sides (the Umps addressed whether Popov's "Sno-Cone Catch" constituted "control" of the ball under the rules of baseball).

Who should win? My answer: Neither fan. Instead, the court should award the ball to Barry Bonds himself. Barry ought to intervene and claim what's rightfully his.

The Problem with Letting Either Fan Win

Faced between the choice of Popov and Hayashi, the California court could understandably be at a loss.

If the court awards the ball to Hayashi, that might encourage dangerous and violent assaults against those who lay first glove on a valuable home-run ball. But what if the court awards the ball to Popov? That wouldn't utterly deter violence either.

Letting Popov win would only move the time frame for assault up a few seconds: Instead of throttling a fan after he catches the ball, a greedy or ambitious fan would simply do the throttling of other potential catchers while the ball is in flight.

The Court Doesn't Need Solomon's Wisdom: It's Barry's Ball

Hayashi has expressed his willingness to put the ball up for sale at an auction, and would split the proceeds with Popov. Popov has rebuffed this offer.

So far, no one has proposed the Solomonic solution of slicing the ball in half (which, while not as disturbing as a sliced baby, would nevertheless destroy the value of the ball). Of course, if one followed King Solomon's logic, merely proposing the solution would allow the court to discern the true fan (who'd never agree to the destructive split) from the false (who might agree out of spite). It's possible Hayashi or Popov might defer when faced with the Solomonic solution, but since both evince more interest in money than respect for the invaluable piece of memorabilia, I suspect they would remain intransigent.

Fortunately, the truly just solution doesn't require the wisdom of Solomon. Who owns Barry's 73rd ball? The just answer is Barry himself.

Major League Baseball says that the fan who "catches" the ball is its owner. But just because Bud Selig says so doesn't make this the right solution ("Contract This!").

What Would John Locke (or John Adams) Say?

The court should be guided not by Solomon but rather by English philosopher John Locke--who, by the way, was one of the most profound intellectual influences on Jefferson, Adams, and other "Founding Fathers. Locke espoused a religiously-charged theory of property in which one acquires dominion over the bounty of the natural world by "mix[ing] his labor" with said bounty.

In other words, according to Locke, a farmer who tills a field acquires a claim of just ownership over that field, because, by his efforts, he has made that field more valuable than it was before, and captured it from the state of nature.

The Analogy of Popov v. Hayashi to Pierson v. Post is Inapt

In Pierson, the court faced the decision of whether to award "one of those noxious beasts called a fox" to a hunter (Post) who had pursued the animal "with his dogs and hounds" or to a poacher (Pierson). The poacher (Pierson) actually killed the fox and carried it away. The court sided with Pierson, the poacher, "for the sake of preserving peace and order in society."

The analogy drawn to the Bonds baseball case equates Hayashi with the poacher, and Popov with the hunter. Under Pierson, then, the ball would go to Hayashi, for the "sake of preserving peace and order" in the bleachers.

Here's a better analogy: (1) A farmer breeds, feeds, and fattens a fox; (2) The fox escapes its pen; (3) A hunter, thinking the fox is wild, pursues and traps the fox; but (4) Just as the hunter and his hounds move in for the kill, another hunter (or perhaps a poacher, unlicensed and illegally on the land) shoots the fox and carries it away.

Earrings and earnings aside, in my analogy Barry Bonds is the fox-breeding farmer. His crack of the bat--and the 72 cracks (and countless walks) that preceded the longball in question--was responsible for turning an otherwise valueless baseball into an everlasting piece of memorabilia.

And Popov and Hayashi are both hunters (if you believe Hayashi) or a hunter and a poacher (if you believe Popov). Neither did a thing to enhance the value of the ball (this wasn't a ball that might have traveled into the cold waters of McCovey cove and been forever lost). As a result, Popov and Hayashi should be entitled to nothing.

This is not a hard case, in which the court must choose between a hapless hunter and a scheming poacher. It is an easy case in which the court can choose a hardworking farmer over those seeking to profit from his labors.

True, there are others who mixed their labor with the ball. The sweatshop laborers who sewed its seams--and made it worth $1.99 as an "official MLB baseball"--are entitled to their contribution. And the pitcher who dished up the ball for Bonds to whack is arguably entitled to something, although awarding him anything substantial would create a perverse incentive for hurlers to offer up softballs (an incentive which might not be counter-acted by the embarrassment of being a modern-day Ralph Branca). Finally, one might argue that the Giants, which employs Barry, or Jeff Kent, who batted behind him most of last season, each has some right to ownership of the ball. Fine. In the final analysis, though, the real mixer-of-labor is Bonds, and he is the one who should get the lion's share.

Barry deserves the baseball. You can slip it into his World Series' MVP trophy.

Sue, Barry, sue.

The author is an associate at the law firm of Shea and Gardner in Washington, DC. He was an adjunct professor of sports law at Wayne State University School of Law in the Spring of 2002. E-mail the author at

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