Advice of Lawyers Only Makes Mientkiewicz Ball Issue More Unclear

By Asher B. Chancey,, January 23, 2005


Late in the summer of 2002, my wife Kelly and I were taking in a spectacular 14 inning game in Wrigley Field. At some point after the second singing of “Take Me Out to the Ball Game,” she and I decided to move down into the lower section of the stadium to take the seats of some fans that had departed. What happened next is the second most disappointing baseball moment of my entire life. (Hint – the first one involves Bob Horner).


From the moment it left the bat, it had eyes for us. As it began its assent nearly straight up, I knew it was headed for us. For what seemed like hours, I stared at that ball as it shot up into the night sky, came to a momentary pause, and then began rocketing back down to earth. As it made its trip through the air, I thought of all the ball games I had been to, real crappers in the Astrodome and Enron Field, where I never had a prayer of catching a ball, and a few games at Zephyr Field, where I desperately hoped to not get hit by one. I remembered all the shots on the big screen of little kids catching balls, of a dad catching a ball and giving to his infant son, only to watch the son throw it back on the field. I thought of the ritual in Wrigley, of throwing back opposing team home run balls. I thought of that day when Andre Dawson hit a home run out of Wrigley, and the result of the mad dash outside of the stadium was that a mailman ending up with the ball, and as he excited ran down the street, he had this huge grin and did one of those jump up and click your heels things.


Unfortunately, from all these thoughts I arrived at a conclusion which led to the great disappointment of the moment. I expertly ascertained that the ball’s trajectory was carrying it not to me, but to Kelly, and I was determined not to steal her moment. This ball had eyes for her, and I would not deprive her of the opportunity to catch it. Little did I know, however, that just as I had resolved to do the noble thing and let her have the ball, she was hoping that I would go the other way with it, and protect her from the ball.


What happened next took only an instant, but I have relived many times ever since. As Kelly cowered, the guy in front of her jumped up and got a hand on the ball, and it bounced in a perfect arc over Kelly’s head. The guy behind her caught it off the carom. It never hit the ground.


In a moment, what should have been my souvenir turned into the souvenir of the guy behind me. As the ball disappeared into his shoulder bag, I knew I had missed an opportunity, and that he had a souvenir he would keep forever.


Which brings me to my point – why is it that I, and he, and Kelly, and every player, coach, announcer, umpire, fan, and concession stand worker knew that the ball was rightfully his? Shouldn’t it have been mine? I saw it first. What about Kelly? It was aimed at her head like it was a heat seeking missile. What about the people in whose seats we were sitting? Shouldn’t they have been contacted and told of the ball and their right to it? What about the hitter? If he had wanted it, wouldn’t he have a right to it since he sent it out of play?


The fact is this – we all knew that it belonged to the guy who caught it because we have been to baseball games in the past and that’s how it works. Nothing else should need to be said.


Unfortunately, the quality of past experience has lost all importance in the Boston area these days, as Doug Mientkiewicz has found himself in a pickle concerning his right to keep a baseball. It seems Doug caught the last out of the World Series and, in a stunning display of presence of mind, held onto the ball. And he didn’t let go. It now sits in a safe deposit box in Florida, and has set Red Sox Nation on fire.


That the Red Sox organization should want the ball back is perfectly understandable. That Major League Baseball would want the ball in Cooperstown is perfectly understandable. And that each party would venture to create legal arguments about why they should each have the rights to ball is absolutely understandable. What are slightly less understandable are the opinions of alleged experts in the field as to why Doug should or should not have the ball. In fact, some of these opinions border on ridiculous.


But before we get to that, some background. The modern era of baseball ownership scandal began in 1998, when Mark McGwire and Sammy Sosa chased Roger Maris’ home run record. So concerned was Major League Baseball that a historic home run would be hit and 500 fans would show up with baseballs claiming to have caught the home run that Major League Baseball commissioned special baseballs which were marked so that the genuine article would be distinguishable from fakes. In a serendipitous twist, McGwire’s 62 homerun of 1998 left just over the outfield fence, but did not reach the fans. Issue over. But what followed was baseball collector mania. Many of Sosa and McGwire’s home run balls from that season sold for big bucks, and the issue would become murkier in the next three years.


Cut to 2001. Barry Bonds very quickly assaults McGwire’s record, and ends up hitting 73 home runs. It just so happened that Bonds 73rd ball was caught by one fan, but in an ensuing melee, the ball was pried from his hands and ended up in the hands of a different fan. For the first time, we had fans end up in the courtroom to challenge the rule of “if you end up with it, then it is yours.” What resulted was a compromise – the two agreed to auction the ball, and split the proceeds. In another serendipitous twist, the guy that makes MacFarlane toys bought if for less than half a million, and the two losers didn’t even make enough off of the sale to cover their court costs.


The case itself, Popov v. Hayashi, actually contains some interesting takes on the situation, however. The argument was made that the MLB owns the baseballs and then gives them as gifts to the fans when the balls go out of play. This argument was soundly rejected in favor of a ruling that the ball belonged to major league baseball, but became “intentionally abandoned property” by virtue of leaving the field of play. Unfortunately, the ultimate resolution of the case was not so logical – the judge in the case decided that "the first person who came in possession of the ball became its new owner," McCarthy decided. Ultimately, the case broke down around the word “possession,” and the dispute was resolved via the auction. Fair enough.


But this Mientkiewicz issue seems altogether different. Doug is not a fan, he is a player. There is no real tradition of allowing players to keep balls after a play is made. But that’s not actually true, is it? Whenever a player reaches a milestone, he is given the ball. Often, after the third out of an inning, players will throw the balls in the stands. Players will also often carry balls in the dugout or bullpen, and play with them, kick them around, and even throw them away if they like. So, it would actually seem that there is no real tradition of not allowing players to keep balls after a play is made. In fact, it appears as though, as long as the inning is over, a player may do whatever he wants with the ball. Or so it seemed to Doug Mientkiewicz. ran a story today in which they quoted three legal scholars - Yale Law School Dean Harold Hongju Koh, Paul Finkelman, a law professor a the University of Tulsa, and Roger Abrams, a Northeastern University law professor who has written several baseball books. The three give an analysis which seems to reflect no knowledge of the law or of baseball.


The Yale guy had a pretty objective viewpoint, legally, which totally ignored all of baseball tradition. Koh noted, “what appears to be emerging as a legal consensus is that the person with the least rights to it is Mientkiewicz himself.” In his opinion, the order of priority would be the Cardinals, since they were the home team; the Red Sox; major league baseball; and then “the guy who happened to hold it at the end of the game.” While this makes good legal sense in terms of contract formation and property rights, it ignores the fact that when it comes to a baseball at a baseball game, being “the guy who happened to hold it at the end of the game” is most often the only important factor.


The Tulsa guy seemed to have at least a subconscious awareness of the absurdity of the dispute. “What this has done is force the baseball teams and MLB to make some decisions about who gets the non-contractual value of a valuable trophy,” he said. “Does he (Mientkiewicz) get a $500,000 bonus because he's the last guy to hold it?” While his bonus idea seems to have nothing to do with anything, at least he was able to acknowledge that this baseball is just that, a trophy, to which no one really has a rightful claim.


The dumbest argument of all, ironically, came from Abrams, the Northeastern University guy, who not only teaches law and writes baseball books, but was also a witness at the Bonds 73rd home run ball trial. Humorously, he gives a sentimental, non-legal opinion about Doug’s rights to the ball, then throws in the word “trustee” in an effort to sound like a legal scholar - “It's not Doug's ball. It belongs to all of us . . . he is the trustee of the ball, but it is owned by all of Red Sox Nation and it should find a place of special importance, either at Fenway or Cooperstown.”


You know that whenever someone says “it belongs to all of us,” astute legal analysis is soon to follow. The phrase is normally reserved for the national anthem, or land claims on the moon, or other ambiguous and obscure things to which stating an ownership claim would be absurd. “It belongs to all of us” is not generally used with respect to tangible object such as baseballs. But wait – there’s more.


The Northeastern guy also argues that “the fact that Mientkiewicz was a midseason addition and a late-inning replacement makes his claim to the ball tenuous. If he had made a leaping catch to secure the victory, been a major contributor during the regular season or even a weathered the franchise's lean years, fans and courts might be more sympathetic.”


Isn’t that kind of like saying that if I buy a plot of land tomorrow, and discover oil on it the day after that, then the oil should belong to the guy who owned the land before me? Or isn’t it like taking the bridal bouquet away from the woman that caught it because there is a woman at the wedding who is older but still single, or has known the bride longer, or just wanted it more? Um, dude, Doug Mientkiewicz has not demanded the keys to Fenway Park, or asked to be the grand marshal of the victory parade, or even requested that there be a Doug Mientkiewicz day in Boston. He just wants to keep a ball that ended up in his hands. The factors that the Northeastern guy points out here would seem to be connected to whether Mientkiewicz should be named team MVP, but have absolutely nothing to do with his claim to the ball.


Northeastern guy goes on to add, based on his knowledge of both baseball and the law, that “the notion that Mientkiewicz did anything is absurd. He didn't do anything . . . he caught an underhanded toss from a pitcher. This is what he's paid to do. He didn't win the World Series. It's simply coincidence that it ended at first base.”


This argument is flawed both legally and baseball-logically. The former is unimportant because this isn’t really a legal argument, but the latter merits discussion, for which reason I offer the following simple hypothetical: Suppose that instead of keeping the ball, Doug caught it, touched first base, and immediately turned and walked over to the stands, handing the ball to random fan. Does the ball now belong to the fan? About the fan we could also say, “he didn’t do anything . . . he didn’t win the World Series . . . it’s simply a coincidence.” Yet there is no one in the baseball world that would not appreciate the fact that the fan now owns the ball.


So, we have a bit of a dichotomy, where fans automatically own the ball they end up with, while players’ claims to balls are more tenuous, and even, according to Northeastern guy, should be determined by virtue of a merit based analysis. So, let’s change the hypothetical: What if Doug caught the ball, touched first base, and immediately turned and ran to the stands and gave the ball to his wife. What then? She is a fan, is she not? Does Doug’s claim to the ball become stronger because his claim now goes through his wife, a fan, instead of himself, a player? Would it make sense if this were the case? Why should the fans rights to a ball be greater than a player’s rights to a ball?


A pretty good argument, one which may ultimately prevail, and one which makes good legal sense, is the argument that Mientkiewicz is an employee of the Red Sox, and like a scientist who makes an important discovery at work, “he's sure to get an attaboy from the boss, but the royalties and patents probably belong to the company.” This doesn’t distract from the fact that major leaguers take things like bats, balls, gloves, athletic equipment, and medical supplies freely all the time, but rather shows that if we are getting technical, the Sox may have a point.


The Northeastern guy, never one to avoid the opportunity to take a good argument and make it dumb, adds his two cents to this argument – “We know if he found the ball in the woods, it's his. But he didn't find the ball in the woods," Abrams said. "Does that mean any first baseman that catches any ball that arrives at first base owns the ball? Of course not.”


What the Northeastern guy stumbles upon with his ridiculous attempt at philosophical explanation is – of course any first baseman that catches a ball that arrives at first base doesn’t own the ball. That would be dumb. What would they do with all those balls? The important distinction, one which the Northeastern guys misses, is that any first baseman that catches any ball that arrives at first base is well within his right to take the ball, as long as the play is dead, or the inning is over. Generally, these guys are allowed to do whatever they want with the balls, and no cares at all about it. What is important is that he did exactly what any ball player during any game is well within his right to do. It just so happened that this time, unlike the millions of other times, someone actually cared.