This Ball Is More Than a Mere Souvenir

What do Barry Bonds, Babe Ruth and Hank Aaron have to do with a whale, a fox and a sunken ship?

More than baseball fans might think, particularly if Bonds can stay in the chase long enough to surpass the No. 2 (Ruth) and No. 1 (Aaron) home run hitters in history.

Bond’s 73rd home run to set the single-season record on the last day of the 2001 regular season was greeted by what a state Superior Court judge subsequently described as an “out-of-control mob, engaged in violent illegal behavior” in the right-field promenade of what’s now known as AT&T; Park in San Francisco. The mad scramble for a bit of baseball history sparked a civil lawsuit between two fans who had laid claim to the ball that was expected to fetch $1 million or more at sale.

Which is where the disputed ownership of a harpooned whale, a mortally wounded fox and the sunken ship came into play as lawyers used court cases dating to 1805 to trace the concept of ownership as it relates to a home run ball.

With Bonds, who is battling with injuries, trying to catch and pass Ruth and Aaron, Major League Baseball has reversed course and resumed marking the baseballs pitched to Bonds in an effort to keep counterfeits from entering the memorabilia market. Collectors doubt that the value of Nos. 714 and 715 will approach what the record-breaking No. 73 brought at sale -- $450,000 -- but some baseball observers suspect that another grandstand scrum and lawsuit are inevitable should Bonds break another record.

Few fans upon hearing the crack of a bat take time to contemplate the physics of a home run shot or the legal properties of the hardball now racing toward them. But at some point along its home run arc, the ball stops being the property of Major League Baseball and becomes a treasured souvenir for some lucky fan.

Should Bonds hit another historic shot that leads to a lawsuit, talk of sinkers, sliders and curveballs again will give way to such arcane issues as when a baseball is abandoned by MLB, how it converts to new ownership and what, exactly, constitutes possession.

Those potentially dry legal theories came to life during a 2002 trial that drew extensive media coverage.

“We were talking about everyone’s dream of going to a baseball park with a glove in hand to catch a home run ball,” said San Francisco-based attorney Martin Triano, who represented the fan who, in a videotape, can be seen with No. 73 in his glove for a split second before ballhawks swooped in for the kill.

The brouhaha surrounding No. 73 was a quirk of America’s national pastime, said Paul Finkelman, a law professor and baseball fan who, during the 2001 season, wrote a 29-page law review article titled “Fugitive Baseballs and Abandoned Property: Who Owns the Home Run Ball?”

In most sports, Finkelman wrote, returning the ball is “part of the culture and mystique of the game.” How better to connect with Kobe Bryant or Shaquille O’Neal than by casually bouncing back an errant basketball? Not so in baseball, where batters try to dispatch balls into the stands, and, since 1946, when the Cleveland Indians abandoned a decidedly stingy policy, all MLB teams have encouraged fans to keep what they can catch.

During an interview, Finkelman said there are two likely scenarios should Bonds hit another historic homer. In one, television cameras will capture fans who make clean catches even as perfectly positioned security personnel rush in to offer protection. But Finkelman suspects the mad scramble for No. 73 will be repeated, and that an unlucky fan could get injured in the process.

Mike Lee, a San Francisco attorney who represented the fan who emerged from the crowd with No. 73 safely in hand on Oct. 7, 2001, doesn’t relish the thought of another lawsuit.

“When it comes to 715, it would be a shame if it ends up in court,” Lee said. “I think the whole court thing tainted the [No. 73] home run ball and hurt its value.”

Triano, who has been invited to speak about the case to law school students, described it as “a wonderful way to explain to students why we’ve got them reading about Pierson V. Post, the [1805 New York Supreme Court] case about who owned a wounded fox running through a field in Upstate New York.”

No. 73 ultimately proved a disappointment for the two fans who laid claim to it. The judge ordered the two fans to split the $450,000 the ball sold for at auction. The sum wasn’t sufficient to cover their cumulative legal fees.