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Take Me Out to the Courtroom: The Legal Battle for Ownership of Barry Bonds' Historic 73rd Home Run Baseball

by Judge Morton Krase

Spring 2004, Vol. 67, No. 1

On October 7, 2001, San Francisco Giants outfielder Barry Bonds hit a historic home run, his seventy-third of the season. The baseball flew into a crowd of fans in the arcade section of Pacific Bell Park Stadium. With his glove outstretched, fan Alex Popov struggled to catch the ball. Instantly, he was overrun by the crowd and thrown to the ground. While Popov attempted to secure the ball, several people grabbed and kicked him in an effort to take it from him. Amid the chaos, the ball popped out of Popov’s glove and landed on the ground. Another fan, Patrick Hayashi, saw the ball on the ground, picked it up and put it in his pocket. Thus began the case of Popov v. Hayashi. Plaintiff Alex Popov brought suit against the defendant, Patrick Hayashi, for taking the plaintiff’s personal property.

In San Francisco Superior Court, Alex Popov argued that the baseball was rightfully his and that he only lost control of it when Patrick Hayashi and a swarm of fans descended upon him. San Francisco Superior Court Judge Kevin M. McCarthy noted that Popov was grabbed, hit and kicked and that the fans in the arcade were “an out-of-control mob, engaged in violent, illegal behavior.”

Defining ‘Possession’
On the issue of who had possession of the baseball, the judge looked toward four law professors to ascertain the true definition of possession and finally adopted the following definition provided by professor Brian E. Gray of the University of California: “A person who catches a baseball that enters the stands is its owner. A ball is caught if the person has achieved complete control of the ball at the point in time that the momentum of the ball and the momentum of the fan attempting to catch the ball ceases. A baseball which is dislodged by incidental contact with an inanimate object or another person before momentum had ceased is not possessed.”

Because of the complex nature of the facts of this case, however, the issue of possession—who actually had full possession of the ball—was in question. In other words, it first had to be determined whether the plaintiff had standing to bring the suit; did Popov have possession of the personal property that was taken?

There are two prongs to the analysis of this situation: possession and conversion. If the plaintiff did not have possession of the baseball then he lacks standing to bring the suit and the claim will fail. It is important to note that the ball originally, of course, was possessed and owned by Major League Baseball. Technically, at the time it was hit the ball became intentionally abandoned property.

What, exactly, constitutes possession? The definition of possession has never been consistently defined. Rather, it has been changed and tweaked to fit the unique facts of individual cases. For this case, Judge McCarthy determined that the definition provided by Professor Gray of the University of California was most helpful. This definition defines possession within the context of baseball as previously noted.

Thus, the definition stresses the importance of determining if the momentum of the catcher and the momentum of the ball have ceased at the point when the two come into contact. Also, as Judge McCarthy pointed out in his opinion, “[t]he central tenant of Professor Gray’s Rule is that the actor must remain in control of the ball after incidental contact with people and things.” In Popov v. Hayashi it was pointed out that if the actor did not retain control of the ball after all momentum had ceased and after the incidental contact with people or objects, then he did not achieve full possession. When Judge McCarthy applied these principles to the facts of the case he determined that it is impossible to determine whether Popov would have retained control of the ball because he was immediately attacked by other fans. In the words of McCarthy, “[Popov’s] efforts to establish possession were interrupted by the collective assault of a band of wrongdoers.” Thus, the court assumes that Popov was not given the opportunity to complete his catch because of the violent behavior of the other fans.

If the catch had been completed, Judge McCarthy points out that the court could undoubtedly rule that Popov had full possession of the baseball; the analysis of possession would end and the court could turn its attention to the act of conversion that occurred when Hayashi took the ball. Because the court views the catch as incomplete, however, and because of interference of the fans, it will not reach this finding.

Act of Conversion
Alternatively, if Popov had dropped the ball, he would not have achieved full possession or, indeed, any possession at all, and the analysis would end. Because Popov’s actions were sabotaged by the actions of others, in the interest of fairness, the court finds that it must decide the question of whether “an action for conversion can proceed where the plaintiff has failed to establish possession or title.” The court then adopts the rule that, “When an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property and the effort is interrupted by the unlawful acts of others, the actor has a legally cognizable pre-possessory interest in the property. That pre-possessory interest constitutes a qualified right to possession.” Thus, the court finds support for the act of conversion. Therefore, Alex Popov has legitimate standing to advance his claim for conversion.

The court notes, however, that this does not take the interests of the defendant into consideration. The defendant achieved full possession when he extricated himself from the violent crowd, picked up the ball and put it in his pocket. Because the Popov court viewed Hayashi as an innocent bystander who was involuntarily dragged down by the mob, he was seen to have committed no wrong and therefore had an equal, if not greater, claim for possession of the baseball. Therefore, the court felt the need to balance the interests of both the plaintiff and the defendant.

Judge McCarthy notes that both men had a possessory interest in the ball and, in the interest of fairness, one interest could not trump the other. Citing two aged cases, Arnold v. Producers Fruit Company and Keron v. Cashman, Judge McCarthy’s court determined that there was precedent for the sharing of personal property when two or more parties have equally valid claims of possession. Therefore, on December 18, 2002, the court ordered that the ball be sold and the proceeds from the sale be split equally between Alex Popov, a restauranteur, and Patrick Hayashi, a graduate student.

Another Point of View
It is this author’s opinion that the decision of Judge McCarthy was flawed and incorrect with respect to the analysis of possession. Because that analysis was so central to the outcome of the case, I would hold that the ball was caught and, therefore, fully possessed by the plaintiff, Alex Popov. Further, I would grant his claim for conversion against the defendant, Patrick Hayashi. My reasoning for this decision is detailed below.

What does, in fact, constitute possession? It is unclear to me whether Professor Brian Gray’s definition is the most illustrative definition, but as it is the favorite of the court I will hold to it. I cannot agree with Judge McCarthy’s conclusion that the catch was incomplete. Rather, I believe that the momentum of the ball and the catcher, Alex Popov, had ceased when he was attacked by the other fans. This is evidenced by the fact that the ball did not deflect off Popov’s glove but landed in it and was dislodged by the hits, kicks and other violent behavior of the crowd. Thus, the catch was completed, giving Popov full and complete possession. At the instant when the ball hit Popov’s glove and did not fall out or deflect off, Popov’s momentum, as well as the ball’s momentum, had ceased. Popov had complete control and dominion of the ball at this point and then he was attacked. It is here that I come to the flaw in Professor Gray’s definition of possession as it entirely leaves out the element of intent found in the other leading definitions.

The intent to control the object in question is also an important element of the definition that must not be overlooked. Popov manifested this intent by putting his glove on, catching the ball and then throwing his body on top of it to keep it safe from the prying hands of others. If that is not intent, then I do not know what is. Because of this, Popov assuredly has standing to bring an action for conversion against Hayashi.

From the case of Zaslow v. Kroenert, we know that the definition of conversion is “any act of dominion wrongfully exercised over the personal property of another inconsistent with, or in denial of, his rights.” It is also clear from the case of Henderson v. Security National Bank that the defendant’s intentions in dispossessing the plaintiff are unimportant. Here the court states:

“The foundation for the action of conversion rests neither in the knowledge nor the intent of the defendant. It rests upon the unwarranted interference by the defendant with the dominion over the property of the plaintiff from which injury to the latter results. Therefore, neither good nor bad faith, neither care nor negligence, neither knowledge nor ignorance, are the gist of the action. Nor, indeed, is negligence any necessary part of the case. Here, then, is a class of cases in which the tort consists in the breach of what may be called an absolute duty; the act itself … is unlawful and redressible as a tort.”

Thus, it does not matter what Hayashi thought he was doing or what he thought was happening, but merely the fact that he took the ball and did not give it back to Popov is a redressible tort at law.

Judge McCarthy goes on to mention that Hayashi’s claim of possession is valid because he was a victim of the same mob that attacked Popov, but it is unclear how this is determined. The court clearly states that Hayashi was “not a wrongdoer” and this is why that court found his claim of possession valid. It is most unclear, however, how the court became so convinced of Hayashi’s innocence since, in pages before that statement, the court noted in the same opinion that “[n]either tape nor the testimony [of eyewitnesses] is sufficient to establish which individual members of the crowd were responsible for the assaults on Mr. Popov.” The unconvincing and insufficient nature of the evidence begs the question of why the court chose to construe such evidence to determine that Hayashi was involuntarily thrown into the crowd and also to show that Popov did not catch the ball.

It seems more likely that the ball was caught by Popov and was then taken from him by Hayashi, and how or why Hayashi succeeded in doing this does not matter. What matters is that the ball was taken from its owner. Even if the court’s finding is true, and Hayashi was a victim of the same mob as Popov, the ball still belongs to Popov. The case of Potter v. Knowles holds that “where two parties rely upon possession solely, as proof of title, the presumption of ownership is in favor of the first possessor. Proof of possession, however short, will entitle a claimant to recover.”

Therefore, the court should have ruled in Popov’s sole favor. Instead, however, the court chose to rely on two cases where the property in question was split among the parties involved, Arnold v. Producers Fruit Company and Keron v. Cashman.

Arnold v. Producers Fruit Company involved prune growers and the company that dried those prunes. The court was faced with the question of who owned the prunes once the ones supplied by the growers were mixed with those already in the possession of the driers. The court determined that it was impossible to determine which prunes were the exact prunes that the growers had provided, so the court held that the grower had an undivided interest in all of the prunes in proportion to the amount of prunes that he had originally contributed.

Keron v. Cashman involved a group of boys who found a sock. All of the boys played with the sock until it ripped, revealing that it was filled with money. Because none of the boys intended to keep the sock before they discovered the money, the court ordered the boys to equally split their discovery.

Both of these cases involve entirely different circumstances from Popov v. Hayashi and are not only off-point but are completely irrelevant. In the case of the prunes, it was impossible to tell to whom the prunes belonged once they were all mixed together. In Popov, it is clear that the baseball belongs to the man who caught the ball, Alex Popov. And in the case of the boys and the sock, none of them manifested the intent to gain control and possession of the sock. In the case of the baseball, each man definitely manifested the intent to possess the ball.

Final Outcome
Finally, the court seems to put a premium on the interests of fairness, which is a great and noble endeavor. It is also a truth of existence that sometimes life and outcomes are not fair in the general sense of the word. Yet these outcomes are often logical and just, and such outcomes are those for which the courts truly strive.

In life, as in sports, you win some and you lose some and others you just tie. There are no ties in baseball, however. There is a clear winner and a clear loser, just as there should be in the case at hand. Alex Popov made the catch and possessed the baseball, and Patrick Hayashi took that ball from him. It should have been ordered that the baseball be returned to the plaintiff, Alex Popov.

On June 25, 2003, Todd McFarlane, the man who paid 3.2 million dollars for Mark McGuire’s seventieth home run ball in 1999, bought the Barry Bonds ball for $450,000. With commission included, the official price was $517,500. Both Popov and Hayashi had attorney’s fees of hundreds of thousands of dollars; the sale of the baseball might wind up being a loss for both men.