The battle of Barry Bonds’ ball finally ends | SierraSun.com

The battle of Barry Bonds’ ball finally ends

Law Review, Jim Porter

As you may have read, a Superior Court judge in San Francisco just issued his ruling in the Barry Bonds’ home run ball case – a classic Solomonic decision.

NUMBER 73

“In 1927, Babe Ruth hit 60 home runs. That record stood for 71 years until Mark McGuire broke it in 1998 by hitting 70. On Oct. 7, 2001, at Pac Bell Park in San Francisco, Barry Bonds hit number 73. That accomplishment set a record which, in all probability, will remain unbroken for years into the future.”

With that opening statement, Judge Kevin McCarthy began his opinion in the case entitled Alex Popov v. Patrick Hayashi.

THE SETTING

Oct. 7, 2001. Barry Bonds came to bat in the first inning. With nobody on base and a full count, Barry swung at a slow knuckle ball. He connected.

The ball sailed over the right-field fence and into the standing room only area known as the Arcade. Alex Popov had traded his regular seats and both he and Patrick Hayashi were ready for Barry’s ball.

Josh Keppel, a cameraman, was right on the spot and filmed it all.

THE CATCH

The ball landed in the upper portion of the webbing of Popov’s softball glove. It was not clear that the ball was secure in the webbing. (Unlike Dwight Clark’s Catch).

Popov was immediately thrown to the ground and pounced upon by dozens of people.

He was grabbed, hit and kicked and one witness said bitten. No one knows what really happened to the ball, but ultimately Hayashi picked it up.

He claimed it was loose on the ground. He put it in his pocket and then asked the cameraman to film him as he raised the ball in the air.

Folks started going after Hayashi. Even Popov grabbed for the ball.

Security guards took Hayashi to a secure area where the ball was marked.

Here’s an interesting footnote from the Court: “Defense counsel (for Hayashi) has attempted to characterize this encounter (between Popov and Hayashi) as one in which Mr. Popov congratulates Mr. Hayashi for getting the ball and offers him a high-five. This is an argument that only a true advocate could embrace.”

THE LAWSUIT

Popov sued for what is called conversion – the wrongful exercise of dominion (control) over the personal property of another.

A key component in a conversion case is to be able to prove that you were rightfully entitled to the item taken – the ball.

Judge McCarthy goes through several pages of varying definitions of “possession.” Heavyweight legal professors weighed in on each side.

Because Popov couldn’t prove he would have actually caught the ball, even without the fans jumping on him, Judge McCarthy found he did not have full possession.

He wrote, “Popov’s efforts to establish possession were interrupted by the collective assault of a band of wrong-doers . . . he was set upon by a gang of bandits, who dislodged the ball from his grasp.”

On the other hand, the Court found that Mr. Hayashi was not a wrongdoer.

SOLOMONIC JUDGMENT

As McCarthy wrote, “both men have a superior claim to the ball . . . Mr. Hayashi’s claim is compromised by Mr. Popov’s pre-possessory interest . . . At the time Mr. Hayashi came into possession of the ball, it had, in effect, a cloud on its title. . . Their legal claims are of equal quality and they are equally entitled to the ball.”

The Judge ordered the two warring parties to sell the ball and divide the proceeds equally. In the meantime, the million-dollar ball remains in the custody of the Court. Novel approach, but probably appropriate. It’s what many judges would like to do in close cases – split the difference, or for King Solomon, split the baby.

It’s also what Barry told them to do months ago.

If you could like a copy of the opinion, please call or e-mail the office.

Jim Porter is an attorney with Porter – Simon, with offices in Truckee, South Lake Tahoe and Reno.