Fugitive Baseballs and Abandoned Property:

 

Who Owns the Home Run Ball?

 

 

Paul Finkelman*

University of Tulsa College of Law

3120 East Fourth Place

Tulsa, OK  74014-3189

 

918-631-3706

paul-finkelman@utulsa.edu

 

 

THIS IS A DRAFT ONLY; NOT TO BE QUOTED, CITED, OR REPRODUCED WITHOUT THE WRITTEN CONSENT OF THE AUTHOR.  THIS IS ONLY A DRAFT.  FINAL ARTICLE TO APPEAR IN CARDOZO LAW REVIEW.

 

THIS DRAFT IS DATED January 26, 2002

 

(C) Paul Finkelman, 2002

 

   On April 18, 2001 Barry Bonds of the San Francisco Giants hit his 500th career home run.[1]  It sailed over the fence and indeed out of Pacific Bell Park and into a part of San Francisco Bay known as McCovey Cove.[2]   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.[3]  A baseball fan and souvenir hunter named Joe Figone waiting in a boat to recover the ball from this much anticipated home run, fished it out of the water.[4]

   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.[5]  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?"[6]  

   This article began as a modest attempt to answer that question.  I presented the substance of Parts I-III at Cardozo Law School's symposium on the law of baseball, directed precisely at that question.[7] 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, imitate 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.[8]   The Seattle Mariners deal 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.[9]

   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.[10]

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

   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" 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 regularly 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 chased it away, hit it, and did everything in his power to remove it from his sight.

   Some might make the argument that the batter might have 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.  But, 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,[11]  the batter has not altered the ball in any fundamental way, has not changed the nature of the ball, as not even added anything of his own to the ball. 

   It is clearly that by hitting the ball the batter has increased its value, but thus 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 that of celebrity to a place or event.  It is perhaps more like 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.

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.[12]  Thus, in his incomplete attempt to catch the ball, the catcher cannot claim an ownership interest in the ball.[13]

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's 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. 

   But, 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 tools -- 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.[14]

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 season, asserted that the ball was "something that belongs to baseball -- and Barry Bonds -- if it belongs to anybody."[15].

   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,[16] kill,[17] mortally wound,[18] harpoon,[19] or even possess on his land,[20] can claim ownership.[21]  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).  Certainly this is a novel claim.  It is also a silly one.  Borges seems mostly to be complaining that there is a dispute 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 Major League Baseball might in the future assert ownership over balls.  MLB might require that all franchise owners retrieve 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.  Neither MLB, nor Barry Bonds, ever owned the home run ball or any other ball; and neither can claim any ownership of a milestone home run ball.[22]

E:  The Real Owner, Before the Ball Was Hit

   If neither the batter, the catcher, nor the pitcher 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,[23] 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.  These balls are 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 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.[24]

   Whether specially numbered, or just regular balls, the home team remains the owner of these 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 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, travelling 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,[25] 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 the those rare moments when Cubs players actually hit them.[26]  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."[27]  On the other hand, the San Francisco Giants web sites 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."[28]

    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 excess balls (foul balls) into the stands; and that once a ball is in the 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 very recently, such as the 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."[29]  Such goods "may be restored to private property by subsequent reclamation,"[30] either by the owner or some other person, a "finder."[31]

   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 without some further act, such as formally manumitting the slave.  Indeed the most important fugitive slave case heard by the Supreme Court,  Prigg v. Pennsylvania,[32] 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.[33]http://www.mopetsmag.com/Editorial.html  Modern environmental regulations also prevent the abandonment of certain kinds of property and hazardous waste.[34]

Similarly, in most places it is illegal to abandon an automobile on a highway or street.[35]  We might indeed take this line of discussion a step further, noting that abandonment of many kinds of property can be seen as littering, dumping, or some other nuisance.[36]

   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 their 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 abandoning 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."[37]  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."

   In the second category of abandonment the intent is determined by the failure of the owner to retrieve or reclaim property "after a casual and unintentional loss."[38]  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.[39]  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.[40]  Certainly that is not the case with the home run ball.  The stadium announcer rarely says 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[41] 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, I am saying it all."[42]  Doubtless, one of the reasons for Veeck's great popularity in Cleveland[43] was the abolition of this incredibly stupid policy.  Certainly no team in more than half a century has required fans to return balls.[44]

   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 then on the field.  But, such a ball could probably not actually 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 attempted 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.[45]  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[46] have assumed they have a right to take home any balls they catch or retrieve in the stands.[47]  Many teams encourage this policy, urging fans, especially children, to bring gloves with them.  Advertisements for Major League Baseball 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 indicating fans are free to keep foul balls and home run balls.[48]  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. 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.[49]

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.[50]  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.[51]

     This common, and now statutory, law of baseball can be compared on 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.[52]  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 pro-players, like John McEnroe have been arguing that U.S. Open officials make the game more fan-friendly by allowing those who catch balls to keep them.[53]

   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.[54]  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 every really  explained the pratice.  In the 1940s and 1950s, when the sport made far less money, fans could keep footballs kicked into the stands on fields goals and extra points.  This changed in the 1960s, when the teams put up nets to catch the balls.  Balls that go over the net are retrieved by ushers.[55]

   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.[56]  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 sense 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.[57]  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.[58]  In some games, like basketball or soccer, sending the ball into the stands costs the term possession of the ball and gives the other team an opportunity to score.  Only in baseball can a team score by putting 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.[59]

   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.

   The story led to some t.v. coverage, and some newspaper stories,[60] 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 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.[61]  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."[62] 

   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.  Indeed, the ticket to a game is in fact a lottery ticket.  Sometimes the pay off 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 baseball was an aspect of interstate commerce,[63] did concede it was "the business of giving exhibitions."[64]  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, 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.

   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[65] 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 in a season.  This ball, also hit in PacBell Park, remained in the stadium, and was speared by Alex Popov, a long time Giants fan and Berkeley restauranteur.  A local t.v. 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, and initially the Giants certified his ownership, but quickly the team backed away from this position, and simply certified that he had the right ball.

   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, and former full time law professor, issued a temporary restraining order preventing Hayashi from selling this baseball.[66]  This order was made permanent on November 28, 2001, pending a trial on the ownership of the ball.[67]

   The lawsuit over the ball generated national and international coverage.  Radio and t.v. 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,[68] Los Angeles Times,[69] the International Hearld Tribune,[70] and The Times of London[71] 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.

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.[72]   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."[73]  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.[74]  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 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 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 whole to spear a whale, so the fan hopes to spear the ball.  Similarly, like an animal, the ball the power of movement, and the unskilled fan, like the unskilled hunter or whaler, might not be able to actually catch and hold on to the ball.

   Nearly a century ago a legal 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."[75]  The case law is clear on this issue.  The classic American case, Pierson v. Post,[76] 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 (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 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."[77]  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[78] 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 et al. v. Budd et al.[79] 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 having killed a whale did not abandon it, but rather marked it an left it anchored, to be picked up later, when the seas were calmer.  Popov snared the ball, and possessed it, and did not abandon it when it was knocked from his glove.

   An intriguing precedent along this line is Swift et al. v. Gifford,[80] 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 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 the harpoon of a whaling vessel failed to hit the whale, or failed to stay in the whale because of the movement of the whale or the lack of skill of the harpooner, 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 -- rationalized the industry and avoided conflict.

   The law pertaining to animals that are owned, and 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."[81]  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 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; 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 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 replaces with the rule of the jungle.  That force and might are all that matter.

   There is also a logic to this rule.  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, or probably like it much.[82]  His only decision on the subject,[83] is clearly erroneous.[84]  But, his famous insight into the common law -- "the life of the law is not logic, it is experience"[85] -- 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 the Mike Piazza 300th home run ought to be that if a player wants a ball back, he should buy it on the open market, using his some of his vast salary to compensate the fan for relinquishing a treasure. 

   The experience of 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 will likely go to court.  The outcome ought to be one that favors a rule of law that encourages civilized, non-violent behavior in the stands.



*     Chapman Distinguished Professor of Law, University of Tulsa College of Law.

[1]     I thank the following baseball fans:  New York attorneys Gianna McCarthy 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 and Sarah Teal; and Harvard Law students Trevor Livingson and Rob Jackson, and future law student Matt Abt for their input on this article.  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.

[2]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.

[3]     List all 500+ home run hitters, the number they hit, and the last year they played.

[4]     Jim Herron Zamora, Meredith May, and Chuck Squartriglia, Giants' Fan Now a Real Ball Hawk, www.mccovey-cove.com (undated)

[5]     Carrie Muskat, Where Have All the 500 Balls Gone?, MLB.COM

[6]     James Alexander Tanford, "Lawprof posting," 19 April 2001, 10:47:29.

[7]Batter Up!  From the Baseball Field to the Courthouse:  Contemporary Issues Face Baseball Practitioners, Benjamin N. Cardozo School of Law, April 30, 2001.

[8]The Colorado Rockies deal with this 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 home run 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).

 

http://www.mlb.com/NASApp/mlb/col/ballpark/col_ballpark_guide.jsp

 

                Significantly, this also implies that fans may go after, and keep, home run balls.

 

[9] http://www.mlb.com/NASApp/mlb/sea/ballpark/sea_ballpark_guide.jsp

[10]     See Paul Finkelman, Baseball and the Rule of Law, 46 Cleveland St. L. Rev. 239 (1998); and Spencer Waller, Neil Cohen, and Paul Finkelman, Baseball and the American Legal Mind (1995).

[11]Pablo Picasso apparently 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.

[12]Or 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 some infielder.

[13]This is also true for any claim by the outfielder nearest to where the ball went over the fence.  He tried, but failed, to gain possession of the ball. 

[14]I thank Matthew Harrington of George Washington University School of Law for this insight.

[15]Ron Borges, Battle of Ball From Bonds' 73rd HR is Silly, MSNBC.COM, 10 October 2001.

[16]See Young v. Hichens, 6 Q.B. (Great Britain) 607, S.C.D.& M. 592, (1844)  Here the plaintiff had "nearly encompassed the fish with a net" but had not full 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 Queens Bench ruled that there could be no possession "until the party had actual power over the fish."  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.

[17]Pierson v. Post, 3 Cai.R. (N.Y.) 175 (1805) (First hunter to kill a wild fox, and not the hunter that first chased the fox, is entitled to keep the animal).

[18]State of Montana ex rel. Visser v. State Fish and Game Commission, 150 Mont. 525, 437 P.2d 373 (1968); Liesner et al. v. Wanie, 156 Wis. 16, 145 N.W. 374 (1914).  In both cases courts hold that someone who morally wounds a wild animal is the owner, even if another person fires a fatal shot actually killing the animal.

[19]See for example, Swift et al v. Gifford, 23 F.Case. 558 (1872) (the first ship to harpoon a whale is entitled to take the whale, even if another ship intervenes and kills the whale).

[20]Keeble v. Hickeringill, 90 E.R. (Great Britain) 906, 907, 908 (1707).  Here Lord Chief Justice Holt of the Court of Queens Bench ruled that Keeble had property interest in 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.  See also A.W. Brian Simpson, Leading Cases in the Common Law 45-75 (1995).

[21]See below, section  V.

[22]Borges, writing in the wake of the attack on the United States on September 11, suggests that any money from the ball be given to various charities for the families of firemen and others who died in the attack.  In the process he belittles the idea that anyone should be concerned about the ball.  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 doubtless raise questions about his profession as a sports writer.  We might equally ask why newspapers and other media pay so much attention to sports.

[23]Known as Lena Blackburne's Baseball Rubbing Mud.

[24]In 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.

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

[26]It should be noted that over the years a few great home run hitters have played for the Cubs, including Ernie Banks (give lifetime home run statistics) and Sammy Sosa (give current stats), but unfortunately, one great player does not team make.

[27] http://www.mlb.com/NASApp/mlb/col/ballpark/col_ballpark_guide.jsp?

[28] http://giants.mlb.com/NASApp/mlb/sf/ballpark/sf_ballpark_guide.jsp

[29]     Ray Andrews Brown, The Law of Property 8 (ed. Walter B. Raushenbush) (3rd ed. 19  ).

[30]     Id.

[31]For baseball 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. 

[32]     16 Pet. (U.S.) 539 (1842); see also Paul Finkelman, Story Telling on the Supreme Court:  Prigg v. Pennsylvania and Justice Story's Judicial Nationalism, 1994 Sup. Ct. Rev. 247 (1995).

[33]     On March 6, 2001, ten year old Rodney McAllister was ten

years old was attacked and killed by a pack of abandoned and wild dogs in the park across the street from his home in St. Louis. Rodney's mother was arrested on charges of child endangerment. She did not know where her son was until police talked to her after the body was found.

 

 

[34]     See for example, 24 USCA 14301, Chapter 137, "Management of Rechargeable Batteries and Batteries Containing Mercury."  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.

[35]     Need to find a cite to city ordinance on this point.

[36]It is possible to argue that a baseball, because it has "value" is not litter, litter being defined as "rubbish."  But, this is surely not the case with other property that has value.  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. 

[37]     Brown, supra note  at 8.

[38]     Brown, at 8.

[39]     Brown, at 8, citing Kansas City, M & B. R. Co. v. Wagand, 134 Ala. 388, 32 So. 744 (1902).

[40]     Brown, at 8.

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

[42]     Bill Veeck with Ed Linn, Veeck as in Wreck  88 (1962).

[43]     Aside from bringing the city a winning team. The Indians had not won a pennant for 26 years when Veeck bought the team; within two years the team was in the World Series.  Veeck, supra note   at 118.

[44]     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, New York Post, August    2001.

[45]     Schley v. Couch, 155 Tex. 195, 284 S.W.2d 333 (1955).

[46]The situation in Japan has been somewhat different.  Writing 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:  the Osaka Dome and Koshein (in Osaka) still require that fans return foul balls.  It is not clear if the two hold outs reflect economic conditions at those stadiums, or simply inherent conservatism in Osaka, especially at Koshein, which is almost a sacred icon of Japanese baseball. 

[47]     Except for Indians fans, as noted above, supra note    .

[48]     Stephen Calkins, 19 April 2001, 14:23:50 posting on lawprof.

[49] http://www.mlb.com/NASApp/mlb/sea/ballpark/sea_ballpark_guide.jsp

[50]Conversation with Jeff Chasen, Esq., in Tulsa, Oklahoma, Sept. 1, 2001.

[51]

[52]     Kate Waits, 19 April 2001, 12:22:11 posting on lawprof.

[53]I thank my colleague and sports law expert Ray Yasser for this information.

[54]In recent years some professional football players have tossed balls into the stands after scoring touchdowns.

[55]     Kate Waits, 19 April 2001, 12:22:11 posting on lawprof.

[56]see The Physics of Baseball

[57]Or in other words, "why is this sport different from all other sports?"

[58]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."

[59]     Andrea Peyser, Piazza's Playing Hardball With 6-Year-Old Fan, New York Post, August  2001.  The first sentence of Ms. Peyser's article is:  "SHAME on Mike Piazza."  I initially gave this article at symposium on baseball and the law, held at Cardozo Law School.  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.

[60]     Wallace Mathews, Ballgate:  Mike Was Right, New York Post, August 12, 2001.

[61]     Peyser, supra note   .

[62]     Peyser.

[63]     Federal Baseball Club of Baltimore v. National League, 259 U.S. 200 (1922).

[64]     Need pin cite.

[65]     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, and as such, am just a little uncomfortable denouncing the team that helped make 1969, 1986, and 2000 such great years.

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

[67]Evelyn Nieves, A Battle for a Ball's True Owner, New York Times, Nov. 28, 2001.

[68]Evelyn Nieves, A Battle for a Ball's True Owner, New York Times, Nov. 28, 2001.

[69]Maura Dolan, Fight for Bonds' Home Run Ball Spills into Court, L.A. Times, Nov. 27, 2001.

[70]Evelyn Nieves, "I Got it!" No, "I Got It!" So Bonds's Record Ball Heads for Trial, International Herald Tribune, Nov. 29, 2001.

[71]Martin Fletcher, The $3m Baseball, The Times [of London], Dec. 12, 2001

[72]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.

[73]Nieves, supra note  

[74]Nieves,

[75]Earl C. Arnold, Law of Possession Governing The Acquisition of Animals Ferae Naturae, 55 Am. L. Rev. 393, at 394 (1921).

[76]3 Caines (N.Y.) 175 (1805).

[77]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).

[78]8 F. 159 (1881).

[79]2 F. Cas. 966 (1868).

[80]23 F. Cas. 558 (1872)

[81]Manning v. Mitcherson, 69 Ga. 447, 450.

[82]See Paul Finkelman, Baseball and the Rule of Law at   .

[83]Cite to Federal Base Ball Club of Balitmore v. National League, 259 U.S. 200 (1922).

[84]See Radovich v. National Football League, 352 U.S. 445 (1957), Justice Clark for the majority noting that Federal Base Ball was "a ruling which at best was of dubious validity."  352 U.S. at 450. For other expressions of doubt about Federal Base Ball, see Toolson v. N.Y. Yankees, 346 U.S. 356 (1953); Flood v. Kuhn, 407 U.S. 258 (1972).

[85]cite to The Common Law

link to lookstein.org