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Tuesday, April 25, 2006
Ballpeace: Doug Mientkiewicz and Red Sox Reach Agreement on Baseball

The year-and-a-half long legal battle between the Boston Red Sox and former first baseman Doug Mientkiewicz over the ball from the final out of the 2004 World Series is over. Mientkiewicz and the Sox have agreed that the ball will go to the Baseball Hall of Fame, where it will remain, forever.

Last November, the Sox filed a lawsuit against Mientkiewicz, claiming that the team owned the ball. The Sox dropped the lawsuit after Mientkiewicz agreed to an independent mediation of the dispute.

The New York Times' Murray Chass (a Yankees fan) believes that Mientkiewicz had the strongest claim to the ball, while the Red Sox had the weakest:
The [Sox] claim of ownership was highly questionable. The commissioner's office supplied it, and the game was not played at Fenway Park. It was in St. Louis. Selig did not want the used ball back, and the Cardinals certainly did not want it as a reminder of their ignominious sweep by the Red Sox. Based on precedent, Mientkiewicz had every right to the ball.
My take: the ball was supplied by Major League Baseball for purposes of a particular game or games, and it, presumably, was under the control of both the home team, the Cardinals, which served a function akin to an implied or possibly express licensee, and the umpiring crew. In between games, the ball either goes back to Major League Baseball or remains under the control of the home team. It is never "given" to anyone. Nor does it go with the visiting team when they leave.

Moreover, Mientkiewicz worked for the Red Sox, and typically employees' works belong to the employer. So even if Mientkiewicz believed that by capably handling the throw from Keith Foulke to record the final out he somehow obtained creative ownership in the ball, that ownership claim would presumably rise to his employer, the Red Sox.

Now, one might argue that Mientkiewicz was like a fan catching a home run ball or a foul ball, and the fan gets to keep the ball. But the difference here seems to be in the abandonment of the ball. A baseball is designed for play within the confines of the playing field and when it leaves the confines--such as when it goes into the crowd--it may be considered abandoned. The ball Mientkiewicz took was never abandoned, as I assume that the either the umpires or the Cardinals' grounds crew collect the balls at the end of every game at Busch Stadium.

So here's my list for ownership claims, from strongest to weakest:

1. Major League Baseball
2. St. Louis Cardinals
3. Boston Red Sox
4. Doug Mientkiewicz

Update: Ariel Reck in the comments mentions a recent and relevant law review article by Brian E. Tierney: A Fielder's Choice: How Agency Law Decides the True Owner of the 2004 Red Sox Final-Out Baseball, 3 Willamette Sports Law Journal 1 (2006). Tierney's conclusion:
Through baseball custom, Doug Mientkiewicz should be allowed to keep the 2004 World Series final-out baseball. Although the gift may have arisen out of his employment relationship with the Red Sox, the baseball industry’s long-standing tradition of allowing players to keep final-out baseballs would effectively negate the Sox’s claim of ownership. This unique situation of a team requesting a sentimental ball back has given notice to MLB that some guidelines must be established. The potential outcome of this controversy may seem disappointing to many fans who believe that the ball represents an entire team’s effort over a 176 game season.
I haven't yet had a chance to read the article, but it seems like a good read.


Had this case gone to court, my guess is that a judge would have played dodgeball and followed Popov v. Hayashi (the Bonds baseball case) and equitably divided the proceeds of the sale of the ball between credible claimants. But I'm not sure that's the right decision. It really depends on whether we are talking about "ownership" from a legal or a moral pespective. From a moral perspective, you're right to say that Doug M. has little claim of ownership. But I think his legal claim is a little bit stronger. After all, you've indicated that Selig (the voice, for better or worse, of MLB) doesn't want the ball. Doesn't that in and of itself make the ball "abandoned property"? The person who has the most well-defined ownership interest has walked away from the ball -- just like MLB walks away from nearly every game ending ball. In my memory, "last out" balls caught by a first baseman are casually tossed into the stands for a young and enthusiastic fan. Baseball, unlike the NFL, wouldn't think to punish/fine a player for tossing the ball to a fan. Why would the fact that the ball was the last out of a world series matter? Legally, that is, how can it matter?

Morally, of course, it does matter. If you buy into the whole John Locke - mixing labor with land to acquire dominion over the natural world thing - then it seems like the strongest moral claim to the ball would be with whomever most "mixed" his labor with the ball. From that perspective, it's probably the Red Sox -- as a team -- that helped "create" the value of this ball (it's worth just .50 cents after MLB puts it in play, but a million or so at the end of the series). Doug M., however, has some modest claim -- after all, this ball is probably (?) worth more (at least to a Red Sox fan) than the ball that didn't end a world series when it went through Buckner's legs.

Blogger Geoffrey Rapp -- 4/26/2006 9:08 AM  

Just curious how people would respond to this hypothetical. Assume that, just like at the end of any other game, Doug M. flipped the ball into the stands (as suggested by geoffrey rapp). It would seem that in such a situation, the ball would be abandoned and the lucky recipient would own the ball.

Now, assume that Doug M.'S family is in the area to which he tosses the ball. If they caught it, are they not in the same position as the random fan recipient? Certainly baseball players toss balls intentionally to season-ticket holders and to kids they met before the game at the end of innings. What if he intentionally gave the ball to a family member? Why should Doug M.'s family member have less of an ownership right than the average season-ticket holder?

Which ultimately leads to the question, what if Doug M. gave it to a family member to hold while he was pouring champagne on his teammates? The ownership right to the ball hasn't changed from when he caught the ball on the field.

So why shouldn't Doug M. have a strong claim to it?

Blogger The Author -- 4/26/2006 10:26 AM  

Geoff: thanks for the excellent comment. A question: when does the ball become abandoned? You say that Selig didn't want it, but at what moment was that clear? Should Mientkiewicz have assumed that to be true only moments after the game ended? I would think the default assumption is that MLB would very much want all of the game material, particularly given the magnitude of that game, and as a result, Mientkiewicz should have at least offered it back (and I don't believe he did, but I might be wrong)--without that offer, the ball doesn't seem abandoned, at least at that moment (unlike with a fan where there is no expectation that a home run ball or a foul ball should be returned).

The Author: like with Geoff's comment, thank you for your excellent points. I think an employee trying to circumvent the rules by flipping the ball into the stands appears to be what he would be: an employee trying to circumvent the rules at the expense of his employer or a different controlling entity. It isn't like the ball in that instance would have inadvertently entered the fan area, or entered because of a game activity (e.g., a player hitting a home run or foul ball). It would have entered the fan area by a player trying to get an object probably owned by MLB out of the stadium without detection.

Blogger Michael McCann -- 4/26/2006 12:53 PM  

There´s a recent article published about that issue:

Willamette Sports Law Journal On Line, Volume 3 Number 2 - Spring 2006.

"A Fielder's Choice: How Agency Law Decides the True Owner of the 2004 Red Sox Final-Out Baseball" By
Brian E. Tierney.

Anonymous Ariel Reck -- 4/26/2006 2:09 PM  

I like the argument for abandonment. At first went with whoever owned the ball. But It seems in baseball, once the ball is in play, it is abandoned and if it goes into the stands a fan keeps it or if the at the end of an inning a player can keep it or throw it into the stands.

I wonder what would happen in football? Don't players have to pay for the balls they throw into the stands and keep?

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