A slugger, two fans and a $1 million baseball
By Matt Bean
(Court TV) -- Basketball fans seldom leave an NBA game with a ball that was thrown out of bounds. Football fans rarely get a chance even to touch the pigskin. But go to any major league baseball game and you'll see hundreds of fans bearing mitts, hoping to grab a piece of America's pastime.
Usually, balls that ricochet into the stands are souvenirs, mementos of a day spent munching peanuts, doing the wave and cheering the home team. But when a player is on the cusp of setting a batting record, home run balls are like a winning lottery ticket.
On the afternoon of Sunday, October 7, 2001, the last day of the regular season, 41,636 fans gathered at Pacific Bell park in San Francisco to see the Giants' Barry Bonds push the single-season home run record to a new level. There wasn't much else to see that day at the park, as neither the Giants nor the Los Angeles Dodgers, their opponents, were playoff-bound.
Two days earlier, Bonds passed St. Louis Cardinal slugger Mark McGwire -- whose 70th home run ball, hit in 1998, had sold for $3 million at auction -- with his 71st and 72nd home runs. Those blasts went to center and right center field, respectively, and if he homered again, the walkway behind the right-field bleachers at Pacific Bell park would be prime real estate.
That's where Alex Popov, a health food restaurateur from Berkeley, Calif., lay in wait. Popov, now 37, had done hours of research on the trajectory of Bonds' home runs. As a left-handed power hitter, the 38-year-old player was prone to pulling the ball, sending it into the right-field stands. Popov decided to station himself at the site of Bonds' 500th home run earlier that season, and stood on the walkway monitoring the game on an earbud radio, the game in front of him, glittering San Francisco Bay behind him, and mitt in hand.
Dennis Springer, a 36-year-old knuckleballer was on the mound for the Dodgers that day. Knuckleballs are slow, wavering pitches that float drunkenly across the plate, but despite their sluggishness, they're deceptively difficult to hit. Still, there wasn't much that got past Bonds' black maple bat that season; he averaged a home run every 6.5 at bats.
Bonds stepped up to the plate in the first inning. He stepped into Springer's sixth pitch, a 50-mile-an-hour gift, crushing it 380 feet over the right field bleachers and onto the walkway.
Popov had planned it right. The ball came sailing right into his outstretched mitt. But as soon as it landed, a melee erupted, and he was tackled by fans. Half a minute later, another fan, Patrick Hayashi, also now 37, emerged with the ball, waving it in front of television cameras.
For the teams involved, the game was an afterthought. San Francisco dispatched Los Angeles 2-1, with neither team playoff-bound. But the home run scuffle set off a battle in the courts that has stretched more than a year and is only now coming to trial, amid clamor over this year's playoffs, of which the Giants are a part.
Now, a year to the day later, the question spurred by the battle -- whether the ball's rightful owner is the man who touched it first or the one who emerged with it from the scramble -- will be pondered by a California civil court judge. The trial is set to begin Monday in San Francisco County Superior Court.
For the past year, the ball has sat in a safe-deposit box in Milpitas, Calif. Because of the economy, its value, once estimated at $1.5 million, is now closer to $1 million, according to memorabilia experts. But to Popov and Hayashi, $1 million is still worth fighting for, even if a good chunk could end up in their lawyers' coffers.
The plaintiff's case
Martin Triano, Popov's lawyer, is banking on a videotape shot by local NBC affiliate cameraman Josh Kepple to convince the judge that Popov had the ball firmly in his mitt before he was set upon. "To have possession you don't have to withstand a mugging gauntlet," Triano explains. "The law is if you possess something, it is yours. There is no test of time."
Kepple's video, shot feet away from where the melee formed, catches Bonds connecting with the ball, and then follows the ball's path into the crowd.
On the tape, Popov's glove is seen thrusting upward through a forest of outstretched arms to get the ball. According to Triano, Popov gains firm possession of the ball, and begins bringing it down to his chest to protect it before he is brought down in a rugby-like scrum.
At that point in the tape, says Triano, perhaps practicing his opening argument, "The American dream of going to a game and catching a baseball is turned into a nightmare." For 30 seconds, the rumble continues. Ted Rowlands, the reporter with the San Francisco NBC affiliate, KNTV, is thrust into the pile-up. One man is pulled out by his hair, and a woman, pulled out screaming, is elbowed in the cheek by another frenzied fan. Finally, Pacific Bell security guards arrive and begin to pick apart the mob.
After the chaos, says Triano, a number of people offered Popov their contact information, vowing to back up his side of the story. To render the chaos in the courtroom, Triano said he may call some of these eyewitnesses.
Popov will have on his side Paul Finkelman, a University of Tulsa law professor who gave a talk at the Benjamin L. Cardozo School of Law in New York City, "Fugitive Baseballs and Abandoned Property: Who Owns the Home Run Ball?" four months before Bonds hit his 73rd. (He later published an article in the school's law review.)
According to Finkelman, only two parties can claim ownership of the ball under the law -- the supplier of the ball, in this case Major League Baseball, and the person who caught it. Because the league allows fans to keep balls, Finkelman believes that Popov is the rightful owner.
"Popov caught the ball, that's pretty obvious if you watch the tape," he says. And to Finkelman, the issue is more important -- a ruling in favor of Hayashi, he says, could in effect sponsor the sort of free-for-all he says robbed him of the ball.
"In a sense, it's a public policy issue," says Finkelman. "You don't want angry fans who had a couple of beers duking it out over who caught the ball."
The respondent's case
Hayashi's lawyers say the suit is forcing them to explain what every baseball fan knows as gospel: It's not a catch if you drop the ball.
Their case is based at heart on the oft-cited maxim that possession is nine-tenths of the law. "Mr. Popov has been parading the videotape saying that it clearly showed he caught the ball," said Donald K. Tamaki, who is representing Hayashi.
To back up his claim, the lawyer plans to call accident reconstruction experts, including a so-called "slip and fall" specialist. Tamaki also plans to call a Major League Baseball umpire who has seen the videotape and says Popov never controlled the ball, a necessary element for a catch.
"Who else better to make that call than an umpire?" Tamaki said.
The issue for trial, a judge ruled earlier, is whether Popov ever had "unequivocal dominion and control" over the historic ball.
Tamaki says he didn't. He says his client, Hayashi, came up with the ball after it rolled loose in the scuffle, and has eyewitnesses to back him up.
And for Tamaki, too, the baseball custody battle speaks to a larger issue: "...if Mr. Popov's lawsuit succeeds, we'll have to set up night courts in every baseball stadium to handle other lawsuits from fans who claim other baseballs hit into the stands."
Is baseball becoming a bloodsport?
Regardless of who wins the baseball custody battle, Bonds' 73rd home run seems to have ushered in a new era in which baseball fandom has become a bloodsport of sorts.
Although Triano stands to profit from the case, he insists there is more than just money involved. The lawyer says he doesn't want America's pastime turned into a hooligan-riddled circus akin to Europe's often bloody soccer matches.
"When is this going to stop?" Triano asks. "Is it going to take a situation where a 10-year-old kid is trampled to death?"
The dispute over Bonds' 73rd home run ball had its roots in an earlier battle. In a race credited with reviving baseball, Mark McGwire and Chicago Cubs slugger Sammy Sosa battled neck and neck in 1998 to break Roger Maris' 1961 record of 61 home runs, turning the bleachers at Wrigley Field, Sosa's home stadium, and Busch Stadium, McGwire's ballpark, into pressure-charged pens.
McGwire eventually smacked his final home run of the year, number 70, into the left field bleachers at his home park. What changed the memorabilia market was that well-known comic artist Todd McFarlane anted up $3 million at auction for the ball (capping his collection of balls from the memorable slugging race, which includes McGwire's #1, 63, 67, 68, 69 and 70, along with Sosa's #33, 61 and 66).
But when St. Louis fan Philip Ozersky caught the ball McFarlane eventually bought, he remained relatively unfettered by the surrounding fans. And when Bonds tied McGwire in the 161st game of the season with his 70th home run, fans surrounding the lucky father-son duo who caught it stepped back and applauded. Numbers 71 and 72 (which caromed back into the park) were peaceful shots as well. Then came his 73rd.
In 2002, as Bonds neared his 600th home run, Pacific Bell security was beefed up to prevent a repeat performance. That didn't stop Vacaville, California, resident Jay Arnesault, who caught the dinger, from bloodying his face in the effort. (A friend and two season-ticket holders have since sued Vacaville saying they gave him their seats and agreed to share the profits from the ball if one of them caught it).
If the trial begins, as expected, on Monday, it will be in the shadow of this year's playoff battle pitting the Giants against their east coast rivals, the Atlanta Braves. For Giants fans Popov and Hayashi, the action this year will be in courtroom.