Fight for Bonds’ Home Run Ball Spills Into Court

Who owns the million-dollar ball that Giants slugger Barry Bonds walloped to make baseball history?

Alex Popov, 37, claims he is the rightful owner of Bonds’ record-setting 73rd home run. As the ball hurtled above the right-field stands on the afternoon of Oct. 7, the Berkeley health food store owner can be seen on videotape stretching his mitt into the air and appearing to snag it in the webbing.

Patrick Hayashi, 36, claims he owns the ball. The Silicon Valley engineer says that in the melee that ensued, he plucked it from the ground after being shoved there by frantic fans.

The thorny dispute is now at the heart of a legal battle that is set for arguments today in Superior Court here. Judge David A. Garcia tentatively decided Monday to prevent Hayashi from selling the ball--it could fetch millions of dollars--until a trial determines the rightful owner or the feuding parties settle.

Garcia is expected to make his final ruling on a preliminary injunction today. The ball meanwhile sits in a safe deposit box, and the judge has the key.

The case of Popov vs. Hayashi is an absorbing legal puzzle over what truly constitutes possession. Depositions of fans at the stadium have been taken, a video has been analyzed frame by frame, and a retired major league umpire has weighed in on the major league definition of a catch.

An attorney for Popov has even unearthed a legal scholar who has co-authored a book, “Baseball and the American Legal Mind.” The law professor is writing a law review article directly on point: “Fugitive Baseballs and Abandoned Property: Who Owns the Home Run Ball?”

The answer in the Bonds case may lie in what happened in the packed arcade of Pacific Bell Park where fans had paid to stand in expectation that Bonds would stroke a shot over the bleachers.

“When I caught it,” Popov recalled in an interview, “I was being thrown to the cement.”

Almost instantaneously, several men jumped on top of him, clawing for the ball and pinning him to the ground. Popov is heard crying for help on a television station’s video of the fracas. When Popov emerged, he was scratched and bruised, his glasses broken. The ball was gone.

Hayashi said he scooped up the ball after he had been knocked to the ground. He said he struggled to get up and finally held it aloft for a television camera. Giants’ security guards whisked Hayashi away, verified the ball’s authenticity, placed it in a clear trophy case, and handed it to him.

“He just happened to be at the right place at the right time,” said Michael Lee, an attorney for Hayashi, who did not wish to be interviewed. “As soon as Mr. Hayashi goes to the ground, the ball is there, and he puts it in his glove.”

Lee contends the custom and practice of baseball is that the rightful owner of a home run or foul ball is the one who ends up with it firmly in his hands.

“Courts haven’t traditionally gotten involved in making these types of rulings concerning sporting events, and for good reason,” said Lee. “We want to keep the American pastime where it is and keep the courts and lawyers out. A person should be able to go to a ball game and have a good time and not have to risk being sued.”

Popov’s legal expert, Paul Finkelman, Chapman Distinguished Professor of Law at the University of Tulsa College of the Law, counters that baseball mirrors the legal system and elucidates the rule of law. It is the most legalistic of sports, and it is as mental as it is physical, he said.

“It is the only sport I know of where a judicial decision is necessary for every play to be completed,” Finkelman said. “Every hit is declared foul or fair.”

To Popov and his legal team, the case is a simple matter of assault and battery. Under their theory, Popov had first possession of the ball and therefore is the legal owner. He was mugged, and the ball was taken from him, they maintain.

Major League Baseball has taken no stand on who owns the ball. “We’re in a difficult position,” said spokesman Patrick Courtney. “We are not there to play judge and jury on this. All I can tell you is that the person we verified had the ball was the person who had the ball when we got there.”

That was Hayashi.

Courtney said he was not aware of any similar lawsuits in the past. “But how many balls are there that are this historically significant?”

Lawyers say the ball could be worth $1 million to $3 million. Mark McGwire’s 70th home run ball sold for $3 million.

A spokeswoman for the Giants said the team has no comment on the dispute.

No one, however, has argued that anyone other than a fan is entitled to the ball.

Bonds has no legal right to it because “he did everything in his power to make it go as far away as possible” and even “committed battery on it,” said Finkelman.

L.A. Dodger pitcher Dennis Springer was the last one to touch the ball, but he “threw it away,” the professor added.

And the Giants might have a contract claim, but like all major league franchises, the team traditionally allows fans to keep balls that land in the stands, he said.

Causation is important in the case, Finkelman observed. “But for people jumping on Popov, Popov would not have dropped the ball.

“If Hayashi’s claim is correct,” the scholar added, “then buying a baseball ticket is an invitation to a mugging.”

Another legal scholar who is not associated with the case says common law involving foraging for meat is instructive.

A hunter whose harpoon felled a whale or one whose arrow first pierced a bird were considered the owners of the carcasses, said Richard B. Cunningham, a professor at the University of California Hastings College of the Law.

“The first person who acquires possession becomes the owner,” said the property law professor.

If, as Cunningham believes from studying photos of the scene, Popov had the ball in his mitt and closed it around the ball, then it belongs to him. But if the mitt never closed, then all bets are off, he added.

“The rule is quite clear: Once control is accomplished, then the person has a property interest and it should be recognized and protected by the law,” Cunningham said.

Retired major league umpire Rich Garcia, hired as a legal expert by Hayashi, argues in court papers that the rules of baseball should apply.

The 25-year umpire viewed the videotape of Popov’s catch in slow motion and concluded the ball was not completely in Popov’s glove.

“The definition of a ‘catch’ on the baseball field is that a player must secure possession of the ball and firmly hold it long enough to prove that he has complete control of the ball and that his release of the ball is voluntary and intentional,” Garcia said.

“In my experience,” Garcia said, “if a home run is hit in a crowded stadium . . . unless the ball is cleanly caught, there is usually a scramble for the ball and collisions or other contact between spectators rushing to get the ball.”

The ball is “fair game” and “up for grabs” until someone establishes “complete control over it,” Garcia said.

Some fans said in sworn declarations that Popov had the ball cleanly in his glove before he was overcome. “I saw Mr. Popov secure the baseball with both hands as he was knocked to the ground,” said witness Maurie Bennett.

Both sides insist the fight is not about money, but about history and honor.

“I caught it. It is a piece of history, and I am a big Giants fan,” said Popov, owner of Smart Alec, Intelligent Fast Food.

Hayashi said that a court victory would be an important step toward clearing his name. In a statement on his Web site, he said he has been wrongly accused of stealing the ball.

“I used to be an anonymous person . . . with a great life. . . . And now I have to defend myself against terrible accusations.”