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Judge Throws Splitter in Dispute Over Baseball

Times Staff Writers

SAN FRANCISCO -- Who says there are no ties in baseball?

A judge Wednesday ruled that Barry Bonds’ record-setting 73rd home run ball belongs to both fans who battled for the hunk of sports history in the stands of a delirious PacBell Park last year. And neither is happy about it.

Superior Court Judge Kevin McCarthy ordered that the scuffed ball, with an estimated value of $1 million, be auctioned and the profits split between Berkeley restaurant owner Alex Popov, who first touched the ball as it flew into the right-field seats, and Sacramento marketer Patrick Hayashi, who recovered it after a fierce rumble.

The judge emphasized that Popov’s attempts to hold onto the coveted baseball were “interrupted by the collective assault of a band of wrongdoers” who descended on him, making it impossible to determine whether he had legal possession of his prize.

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“Judicial rulings, particularly in cases that receive media attention, affect the way people conduct themselves,” McCarthy wrote. “This case demands a vindication of an important principle. We are a nation governed by law, not by brute force.”

Lawyers on both sides said they would study the judge’s complex 12-page ruling before deciding whether to appeal. But nobody wasted time putting their own spin on McCarthy’s decision.

“All I know is that I had possession of that ball,” fumed Hayashi. “Now I’m going to have to go back and evaluate what the legal definition of possession is.”

He said the judge’s ruling proved that he did not attack Popov in the scramble, and he insisted on an apology.

Nothing doing, countered Popov outside the courtroom, suggesting that he still held Hayashi partially responsible for yanking the baseball from his glove during the much-publicized scrum. “He owes me an apology.”

Contradicting his lawyer, Martin Triano, who called the ruling “a victory for all fans,” a disgruntled Popov insisted that the judge’s decision gives outright support to mob violence.

All he ever wanted, Popov said, was to keep the baseball he caught, a dream now very much in doubt. “It’s a piece of baseball history, a piece of San Francisco history and a piece of legal history,” he said. “The way I see it is that anything short of full possession gives power to mob mentality and allows people to profit from aggression.”

One baseball expert called McCarthy’s ruling a contradictory end to a case furthered by greed and selfishness.

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“Everybody’s saying all they want is to touch history,” said Paul Zingg, provost at Cal Poly San Luis Obispo and a baseball writer who consulted on the Ken Burns PBS documentary “Baseball.” “But the judge is putting a value on anything that might allow someone to be part of history. Where do you stop?”

15-Day Trial

McCarthy’s ruling followed last month’s 15-day trial, which featured a retired major league umpire, a consultant with a degree in biomedical engineering, a teenager who testified that he was bitten in the battle for the baseball and four legal scholars who argued the legal possession history of “fugitive baseballs.”

Popov, 38, contends that he legally caught the ball and lost it only after being attacked by fans. Hayashi insists that he picked up the ball after it rolled out of the press of bodies and that it belongs to him. After the two sides failed to reach an out-of-court settlement over the ball, which sits in an Alameda County bank safety deposit box, McCarthy set the matter for trial.

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Central to the case, the judge said, was who had possession of the ball and when and how they could prove it. But despite 17 eyewitnesses and video footage showing Popov catching the ball and holding it for 0.6 seconds before being descended on by fellow fans, McCarthy said crucial evidence was nonetheless missing.

“We will never know if Mr. Popov would have been able to retain control of the ball had the crowd not interfered with his efforts to do so,” the judge said. “Resolution of that question is the work of a psychic, not a judge.”

McCarthy, a baseball neophyte who says he has never been to PacBell Park, nonetheless sounded like a play-by-play announcer as he read his verdict on the events of Oct. 7, 2001. “Barry Bonds came to bat in the first inning. With nobody on base and a full count, Bonds swung at a slow knuckleball,” he read to a courtroom packed with reporters and supporters from each litigant. “He connected. The ball sailed over the right-field fence and into the arcade.”

But then things went haywire.

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The judge described how the ball landed “in the upper portion of the webbing of a softball glove” worn by Popov. “While the glove stopped the trajectory of the ball, it is not at all clear that the ball was secure. Popov had to reach for the ball and in doing so, may have lost his balance.”

But the judge acknowledged how Popov was thrown to the floor and buried under several bystanders as they clawed for the baseball. He called the fans “a band of wrongdoers” and likened the melee to a “collective assault.” When Hayashi plucked the ball from the floor, the ball already had “a cloud on its title,” the judge said.

But McCarthy said it would be unfair to deny Hayashi the ball because it is possible that Popov might not have caught it cleanly even if he hadn’t been thrown to the floor.

“Hayashi was not a wrongdoer,” McCarthy wrote. “He was a victim of the same bandits that attacked Mr. Popov.” And Hayashi, not Popov, was the one who obtained “unequivocal dominion and control” over the ball.

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During the trial, McCarthy heard Popov’s lawyers refer to 100-year-old whaling disputes, buried-ship-salvage cases and hunting laws holding that, since mortally wounded animals often flee, a shooter acquires possession upon the act of wounding an animal, not at the eventual capture.

But McCarthy on Wednesday waved away those references to cite other legal precedents, including case law dating back to the 1880s involving five boys who found a sock containing $775 along railroad tracks in Elizabeth, N.J.

McCarthy said the court at the time ruled that “each boy had possession of the sock at some point” before any of them knew that it contained the money and that “each boy was entitled to an equal share.”

In the months after the melee, Popov and Hayashi have been criticized by baseball insiders, including Bonds, who has suggested that the pair sell the ball and split the profits.

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But Donald Tamaki, a member of Hayashi’s legal team, called the judge’s ruling “puzzling.”

“He made a ruling that is unprecedented in California law and even in American law,” he said. “Without controlling a piece of property somehow you have a ‘qualified pre-possessory interest in it.’ The way I see it, either you have it or you don’t. It’s like being half pregnant -- either you are or you aren’t. And so that concept of an in-between right is actually new.”

Unruly Fans

Law professor Paul Finkelman, who helped Popov’s legal team, said McCarthy’s ruling rewards unruly fans at ballparks. “While this may seem to be a Solomon-like decision -- cutting the baby in half -- what it does is say if you are involved in a mugging ... then you get to profit from that.”

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He complained that the judge did not follow through on the evidence, particularly a video of the so-called catch.

“The evidence shows the ball is in Popov’s hands,” said Finkelman, a Chapman Distinguished Professor of Law at the University of Tulsa College of the Law. “This rewards essentially those who would commit violence at the ballpark.”

Both Popov and Hayashi acknowledged that the legal fight has changed them. Popov joined a Christian fellowship group. Hayashi quit his job at Cisco Systems and moved to Sacramento.

But there was no joy in Mudville, or San Francisco, for that matter, Wednesday as neither man was ready to shake hands and move on.

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“I had talked with friends about having a party and enjoying this baseball,” Popov said. “Now that will have to wait.”

Said Hayashi: “Who would have thought? I go to the ballpark for a good time and end up in court.”


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