The “Who Owns the Baseball” Issue Just Will Not Go Away

baseballEarlier this week, the Philadelphia Phillies decided to return the baseball that Phillie Ryan Howard hit for his 200th career home run to the fan that caught the ball.  This particular baseball is significant because Howard reached the 200 home run mark in fewer games than any player in baseball history.   The “historic” home run was hit in Miami on July 16 in a game against the Florida Marlins, and the lucky fan was twelve-year-old Jennifer Valdivia, who was sitting in the right-field bleachers at Land Shark Park.

Valdivia and her fifteen-year-old brother attended the game without an adult companion.  After catching the ball, the Miami resident was escorted by Florida Marlins employees to the Philadelphia clubhouse, where she was given cotton candy and talked into exchanging the home run ball for a different baseball autographed by Howard.  Upon learning of these events, her family retained lawyer Norm Kent and formally requested that the ball be returned.  The team refused to give the ball back for almost three months, but decided to do so after Kent filed suit on Monday, October 5.

Although the Phillies have so far refused to comment on their decision to return the ball, they most likely did so to avoid the bad publicity that would follow widespread reporting that the team had taken advantage of a twelve-year-old fan.  What is more interesting is that the Phillies appear to have accepted that the ball did belong to Valdivia, rather than to the home team Florida Marlins or Major League Baseball.  Had they believed the latter, they could simply have requested that the Marlins retrieve the ball for them, and they would not have had to barter with the young girl.

Historic home runs balls have become objects of great value in recent years, and the “ownership of balls batted into the stands” issue has been much discussed.  However, the legal aspects of the matter have rarely been understood even though it is not really a complicated question.  The right to such baseballs can be established through the application of basic property law principles.

The first task is to establish the owner of the ball before it is hit into the stands.  Ordinarily, this is the home team, which is obligated to provide baseballs meeting major league specifications.  The baseballs are given to the umpires prior to the game, but neither that action nor the use of the balls in pre-game practice or in the game itself reflects a transfer of ownership, as evidenced by the fact that any leftover baseballs are returned to the home team when the game is completed.

Logically, a fan retrieving a ball hit into the stands is legally entitled to keep the ball only if the home team’s ownership rights have been somehow transferred or relinquished.  Ownership rights are transferred only by abandonment, gift, or sale.  If there is no abandonment, gift, or sale, there is no change in ownership.

Although it is often stated that baseballs are abandoned once they leave the playing field, there is no legal basis for such an assertion.  At football and basketball games at all levels and at amateur baseball games, fans are expected to return balls that travel into the area where spectators are seated.   To lose control of an owned object is not tantamount to abandonment.  If two boys are playing catch and an errant throw lands in a neighbor’s yard, they may not have the legal right to retrieve it on their own (because of trespassing laws), but that does not mean that they have abandoned their property rights to the ball.

Moreover, abandonment as a theory will not work in situations where representatives of the home team go into the stands immediately after the ball lands for the purpose of retrieving it.  Obviously, the owner is not abandoning the ball if its agents are trying to get it back.  Only if no effort is made to retrieve the ball, and it appears that the owner has relinquished any intention of reclaiming it, can the ball be said to be abandoned.  Consequently, if the fan has a legal claim to a ball that the owner wishes to retrieve, the claim cannot be based upon a theory of abandonment.

A better argument than abandonment is the argument that the ball is a “gift” from the home team to the fan.  Gifts require both donative intent (the intention to make a gift) and actual or constructive delivery.  Otherwise, the change of possession represents either a bailment or theft, but in neither of those situations is there a change of legal ownership.

One could argue that when a fan enters the seating area of the stadium, the home team “prospectively” gives him or her any ball hit into the stands that he or she might retrieve.  However, there are problems with the gift analysis.   Although prospective interests can be the subject of gifts — I can give away a five percent interest in the profits (ha!) from my next casebook — the law of gifts normally requires that the donor control the object of the gift at the time of delivery and that the object of the gift can be defined with specificity.  There is also a fine line between gifts of prospective benefits, which are enforceable, and promises to make a gift in the future, which are not.

Of course, if the home team decides not to make an effort to retrieve a particular ball hit into the stands and instead allows the fan that recovered it to keep it, one can argue that a gift has been made at that point.  However, this rationale provides no legal protection for the fan in cases where the owner or its representatives are in the stands demanding the return of the ball.

The better analysis is that the ball belongs to a fan as a matter of contract.  When one purchases a ticket to a professional baseball game, the buyer is led to believe that he is purchasing a number of entitlements — among which are the right to watch the ensuing game without interference and the right to sit in the seat identified on the ticket.  Because of the longstanding practice, dating back at least to the 1920’s, of allowing fans to keep balls hit into the stands at professional baseball games, the “right” to keep such balls, I would argue, has become an implicit part of the contract between the team owner and the ticket buyer.

When you purchase a ticket to a baseball game, part of what you are purchasing is the right to keep any ball, hit fair or foul, that you retrieve when it passes into the stands.  Every baseball fan knows this.  To demand the return of a ball at this late date would constitute a breach of contract.  Even if the fan were not entitled to the return of the ball itself, if it were improperly taken away, the fan would be entitled to the cash equivalent of the ball’s value.

This analysis would not prevent a team from announcing a new policy that all balls batted into the stands must be returned if requested, but it seems highly unlikely that any team owner would adopt such a policy, which would surely anger fans and give them reasons not to purchase tickets.

So the Phillies were actually right.  The ball did belong to Jennifer Valdivia.  It was hers under the terms of the contract between young Jennifer and the Marlins that was created when she purchased her ticket.  What the Phillies did wrong was to try to defraud a young girl whose family knew how to find a lawyer who understood the sports memorabilia market.

The Miami Herald story reporting the return of the ball and a video of an interview with lawyer Norm Kent can be found here.

This Post Has 16 Comments

  1. David Rudstein

    Would it matter if the home team announced, as many do, that “fans are welcome to keep balls hit into the stands”? Or, as happened to me this year, a hometeam empoyee (bullpen coach) tosses a home run ball to a fan and then seeks its return because it was the hitter’s first major league home run?

  2. Gordon Hylton

    David, Those are interesting questions, but I think that they can be answered in the contract/gift context. If the right to keep balls hit into the stands is part of the rights that accompany the ticket, then announcing it later doesnt really change anything. If the right is not included in the contract, the announcement sounds like a gift, or at least a promise to make a gift.

    As for the ball tossed into the stands, I’m not sure that the right to keep such a ball is part of the general expectations, although it may be. Even if it isn’t, it seems to me that a coach has sufficient agency to give away a ball. I would argue that the fan in your example should be legally entitled to keep the ball.

    You may remember that there was an ugly incident at Shea Stadium about five or six years ago when a group of Mets employees took Mike Piazza’s 300th home run ball away from a fan because they thought that Piazza would want the ball. That, I believe, was clearly without legal justification.

  3. Tom Kamenick

    Gordon, outfielders who toss a ball back and forth with a ball boy/girl as an inning is starting frequently toss the ball up into the stands. Clear gift?

    If a batter is trying to hit a home run, would that create intent?

  4. Kaitlin Janusz

    What about the tax consequences? A “gift” from “detached and disinterested generosity” is not included as part of a taxpayer’s gross income.

    If the ball transfers ownership because the catcher had a contractual right to keep the ball if it went into the stands, does it meet the three Glenshaw Glass standards that will make it income? (1. an accession to wealth, 2. clearly realized, 3. over which the taxpayer has complete control)

    What does the 12-year-old fan pay in taxes on this ball, if anything? It seems like she will have a hefty tax bill if she makes the contract argument.

  5. Andrew Golden

    What the Phillies did wrong was to try to defraud a young girl whose family knew how to find a lawyer who understood the sports memorabilia market.

    That’s a little heavy-handed, don’t you think? You make it sound like the Phillies rudely and coldly ripped the ball out of her hands. They took her down to the clubhouse, gave her cotton candy, and traded the ball for another one. She agreed to the trade (or rather her parent sort of de facto agreed to it on her behalf, if you want to get technical; other news stories I’ve read have indicated that the mother was present at the time this all happened, as well she should be when her child is taken elsewhere in the ballpark!). She wasn’t coerced, and she wasn’t threatened; she accepted what she felt was a fair deal.

  6. Gordon Hylton

    These are all very interesting comments.

    As for Tom’s questions, I do not think that anything that happens in the playing of the game itself works a change of ownership. Players acquire no ownership rights to a baseball simply by catching or hitting it. I am also fairly confident that to the extent that they are agents of the owner, their agency does not include the right to give away the game ball during the game.

    The practice of coaches and players tossing warm up balls into the stands may be different. Given that this practice has now gone on for a long time and given the apparent failure of teams to object, one could argue that such acts are within the agency of players and coaches. Either directly or indirectly teams have authorized their personnel to toss practice balls into the stands. This, I think, is simply good business as it favorably disposes the fans to the home team and to the idea of attending more games in the future.

    So in that case, it appears to me that we have a “gift” from the owner via its agent to the fan.

    As for Kaitlin’s point … I am no tax expert, but it seems to me that under both gift and contract theories, young Miss Valdivia will owe tax on the ball. (Valuing it will be problematic since its ultimate value will be largely determined by what Ryan Howard does during the rest of his career.)

    If this is unfair (and I think it is), the problem is with the tax code and not the law of property. This problem goes back almost 50 years (at least) to the Maury Wills case when Wills was required to pay tax on the “ceremonial belt” that he received for winning the Hickok Award as the “professional athlete of the year” in 1962.

    As for Andrew’s suggestion that I am too harsh on the Phillies in this case … I will admit that the misconduct of the Phillies does not exactly rise to Roman Polanski levels, but it does seem to be fundamentally unfair to engage in contract negotiations with a 12 year old who lacks legal capacity.

    Generations of my students have had to suffer through my story regarding the time that one of my third-grade classmates traded his Timex watch to another classmate for a cookie. The next day, the sharp dealing classmate was forced to return the watch even though his trading partner had already eaten the cookie. From a third grade perspective, it seemed unfair, but minors really dont have the judgment to make realistic appraisals of the value of objects or to enter into binding contracts.

    As to whether or not the Mother was present at the game. … If you listen to the interview with the lawyer that I mention at the end of the original post it seems pretty clear that she was not, and most of the newspaper accounts that I have read confirm this. However, if she was at the game, the Phillies conduct is even more reprehensible. That would mean that they intentionally separated a child from her mother so that they could bargain with the child alone.

    Andrew, I have always admired your judgment on morally-tinged legal issues, but on this one I think you are wrong.

  7. Gordon Hylton

    As a quick follow up to Kaitlin’s suggestion that the legal theory applied to ownership of baseball hit into the stands could have unforeseen tax consequences, there is a scholarly literature on this point. See Lawrence A. Zelenak & Martin J. McMahon, Jr., Taxing Baseballs and Other Found Property, 84 TAX NOTES 1299 (1999); Joseph M. Dodge, Accessions to Wealth, Realization of Gross Income, and Dominion and Control: Applying the “Claim of Right Doctrine” To Found Objects, Including Record-Setting Baseballs, 4 FLA. TAX REV. 685 (2000); Michael Halper, The Tax Ramifications of Catching Home Run Baseballs, Michael, 59 CASE W. RES.L. REV. 191 (2008); and Andrew D. Appleby, Ball Buster: How the IRS Should Tax Record-Setting Baseballs and Other Found Property Under the Treasure Trove Regulation, VT. L. REV. (2008).

    1. Brandon Jenkins

      Do you know how I might access Joseph Dodge’s article? It doesn’t seem to be available anywhere online, including JSTOR and other popular sites.

  8. Jeffrey Standen

    Jack, great analysis. Personally, I view the common practice of teams a little differently. Sports teams implicitly retain ownership of all items that fly into the stands. Most of those items the teams want back: baseball bats, gloves, footballs, basketballs. (And even the occasional player falls in to the stands, and so far anyway, teams want them back too.) Baseballs aren’t customarily returned because their cost is trivial and they’re completely fungible. But when a baseball becomes a collectible its value is non-trivial. The long-standing practice is for teams to retrieve items of non-trivial value. The Phillies should have kept the ball.

  9. Gordon Hylton

    Jeff. This is an interesting way to look at the problem. Under this approach, the team “gifts” balls to fans every time they decide not to reclaim them. Under that rationale, a team could always legally request a ball back if it was of value (which is your point) since they would be under no obligation to make such a gift.

    I disagree because I believe that the practice of allowing paying customers at professional baseball games to retain the balls batted and thrown into the stands has been so ubiquitous for such a long period of time that that the right to do so has become part of the ticket sale contract. Consequently, in my view that right cannot be revoked without notice prior to the sale of the ticket. Since there was no such prior notice, the young girl is legally entitled to keep the ball.

  10. Norm Kent

    Great and thoughtful piece. Nice change of pace after death threats from Phillies fans.

    I said from the outset that the young girl legally maintained rights to the ball.

    First, Tradition ! That’s the way it is. An implicit agreement that any person who goes to a game and catches a ball gets to keep it. Common American practice. For over a century.

    Second, it’s a 12 year old kid. Phillies had no business making any deal without a guardian present. That’s the way the law is.

    Third, the Phillies recognized that. They returned the ball, a day late, a dollar short, but they returned it.

    It was a pleasure to read a thoughtful, articulate, common sense legal analysis of the issues generated by this controversy.

    Thank you.

    Norm Kent

    1. Brandon Jenkins

      Dr. Kent,
      I would like to know, for my own reference, what the actual law is governing this rule? It’s for essay purposes. Thanks!

  11. Gordon Hylton

    Although he was too modest to mention this, Norm Kent, the author of the previous comment, is the Flordia lawyer that successfully represented Jennifer Valdivia in her successful efforts to recover the baseball at issue in this dispute.

  12. Scott Fisher

    What decides which fan gets the ball? I have seen a ball hit into the stands, picked up by a small girl and then snatched away by an adult woman.

    Is it simply “might is right” in this situation?

    Can I grab the ball out of anyone’s grasp if I am bigger and stronger?

  13. Dorothy Allan

    Just the idea that they took a child with no adult to protect her interest into the clubhouse to swindle her out of a baseball she had caught was despicable, bribing her with cotton candy is worse.
    (want some candy little girl) GROSS
    They shall receive very little forgiveness for return the ball that behavior was ugly.
    Very low brow boys!

  14. Rick Peterson

    I got to this page as I’m listening to a Yankee game waiting to see if Judge hits HR #62 (that’s why I’m replying 13 years after the original post).

    Scott Fisher’s question (6/10/17) about whether “might is right” is interesting; unfortunately I think that rule applies. I caught a home run by Aaron Boone in 2003 (yes, THAT home run–the ball is currently on loan at the Yankees Museum). Many people tried for a few minutes to try to rip the ball out of my hands, but I managed to hold on. I suspect if someone else had managed to take it away, there wouldn’t have been much I could do to get it back. There were no Yankee personnel nearby to appeal to. The only possibility would be if the surrounding crowd shamed them into returning it. I will say that once I clearly established that no one would take it from me, the crowd around was excited and very supportive of me, asking for pictures with me and the ball, and no one made any further attempts to take the ball.

    I think one big difference between Boone’s home run and Ryan Howard’s home run (or Aaron’s Judge’s 61st, or hopefully 62nd), is that the ball I caught was not a “milestone” home run, which fans can anticipate and make plans to attend a game to catch, and which are likely to be valuable. My catch was random and unexpected.

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