Will Ohtani's 50/50 Ball Be Split 50/50? Fla. Court to Decide Owner of $4.5M Disputed Catch

• Mark McGwire's 70th HR ball (1998): $3 million
• Aaron Judge's 62nd HR ball (2022): $1.5 million
• Babe Ruth's All-Star Game ball (1933): $805,000
• Barry Bonds' 756th HR ball (2007): $752,000
• Hank Aaron's final HR ball (1976): $650,000
• Barry Bonds' 73rd HR ball (2001): $518,000

With so much money on the line, it's common to see litigation when ownership is in question.

Legal Drama Over Ohtani's Ball

That is exactly what occurred when Ohtani's ball headed to auction. On Sept. 25, media sources reported that the fan who supposedly caught the coveted 50/50 ball, Chris Belanski, consigned the ball to Goldin collectibles marketplace for bidding. Goldin announced it would open private bidding at $500,000, but someone could purchase the ball outright at $4.5 million before Oct. 9. The outright purchase option goes away, however, if the bidding reaches $3 million before Oct. 9. After that, extended bidding begins Oct. 16.

'Popov v. Hayashi'

There is little case law to guide the Florida judge in determining who owns a potentially $4.5 million baseball. The only major litigation surrounding ownership of a baseball caught at an MLB game came when Barry Bonds hit his single-season record 73rd home run. The California court in that case, Popov v. Hayashi, 2002 WL 31833731 (Cal. Sup. Ct. Dec. 18, 2002), did not give much legal basis for its decision to recognize that both litigants had full and equal ownership in the ball.

In Popov, plaintiff Alex Popov and defendant Patrick Hayashi attended a Giants game on Oct. 7, 2001, at PacBell Park in San Francisco. Each brought gloves with hopes to catch Bonds' much anticipated 73rd home run, the single-season record to this day. Video showed the ball "landed in the upper portion of the webbing" of Popov's glove, but that "it is not at all clear that the ball was secure." Even as the ball entered the glove, a crowd engulfed Popov, who "was tackled and thrown to the ground while still in the process of attempting to complete the catch." Some people, either intentionally or unintentionally, "descended on him for the purpose of taking the ball away." No video or witness could determine what occurred in the bottom of the melee, but somehow the ball popped out of Popov's glove and rolled to the feet of Hayashi. Id. Hayashi saw the ball trickle out of the crowd, picked it up, and hid it until he got a cameraman to take a video of him in clear possession of the ball. Id. Popov then sued Hayashi "for conversion, trespass to chattel, injunctive relief and constructive trust." He argued "that Mr. Hayashi intentionally took it from him and refused to give it back."

To determine who could benefit from the auction proceeds for the baseball, the court had to determine true ownership. With no case law discussing ownership of home run balls at MLB games, the court turned to Paul Finkelman's law review article, Fugitive Baseballs and Abandoned Property: Who Owns the Home Run Ball?, which sought to answer: "by what legal theory does" a fan "claim ownership and title to the baseball?" The court adopted the theory that before the ball was hit, MLB "possessed and owned" it. After the ball was hit, "it became intentionally abandoned property." Thus, the "new owner" was the "first person who came in possession of the ball."

So how did the court determine whether Popov or Hayashi first "came in possession" of Bonds' 73rd home run ball? After discussing various theories of property ownership by scholars at the time, the court settled with the following definition of ownership:

A ball is caught if the person has achieved complete control of the ball at the point in time that the momentum of the ball and the momentum of the fan while attempting to catch the ball ceases. A baseball, which is dislodged by incidental contact with an inanimate object or another person, before momentum has ceased, is not possessed.

(Citing Professor Brian Gray). Importantly, "intentional" contact by another person cannot count to dislodge the baseball from the original possessor. The court therefore ruled that Popov "did not achieve full possession" because he did "not established by a preponderance of the evidence that he would have retained control of the ball after all momentum ceased and after any incidental contact with people or objects."

However, to avoid allowing "the result in this case to be dictated by violence," the court took an extra step as a "court sitting in equity." The court reasoned that the unlawful acts of the crowd around Popov kept him from securing possession. Accordingly, the court fashioned its own "rules and remedies designed to achieve fundamental fairness." The court-fashioned possession rule read as follows:

Where an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property and the effort is interrupted by the unlawful acts of others, the actor has a legally cognizable pre-possessory interest in the property. That pre-possessory interest constitutes a qualified right to possession which can support a cause of action for conversion.

While Popov never "completely possessed" the ball, the court ruled he had "a legally protected pre-possessory interest" in the ball, because he would have achieved possession were it not for the "unlawful action" of the "gang of bandits" who set upon him and "dislodged the ball from his grasp."

In yet another turn, the court said it "would be unfair" to award the ball to Popov based only on his pre-possessory right. In other words, there were two competing rights to the ball: Popov's pre-possessory interest and Hayashi's complete possessory interest.

The court settled this dilemma of competing interests by turning to the concept of "equitable division." R.H. Helmholz fleshed out this theory in a 1983 law review article, titled "Equitable Division and the Law of Finders." When two claims to lost or mislaid property "are equally strong," according to the court and Helmholz, equity should provide "the same remedy" to each interest. Because neither Popov nor Hayashi were at fault for Popov unlawfully losing control of the baseball, and because both had an "equally strong" property right to the ball, the court declared "that both plaintiff and defendant have an equal and undivided interest in the ball."

Will Ohtani's 50/50 Ball Be Split 50/50?

What does the law say today about Ohtani's baseball? In short, nothing beyond what the Popov v. Hayashi court said back in 2002. Only one case even references Popov for the proposition that "a court may order that a property be sold and the proceeds be divided." See Su v. Sotheby's, 2022 WL 14118016, at *19 (S.D.N.Y. Oct. 24, 2022). But this case involved ownership of a vessel where two parties were co-owners, and thus both held 50% interest in the vessel. While cases like Su involved a similar "equitable division" outcome as in Popov, no court has addressed whether two parties who are not co-owners can have full and complete ownership in a property, and thus have to split the proceeds. The case in Popov was complicated more by the fact that Popov would have had complete possession of the baseball absent unlawfulness by third parties. And the complete possessor of the ball, Hayashi, was innocent and did not interfere with Popov's possession.

Litigation over Ohtani's 50/50 ball provides the rare opportunity for courts to build on this niche area of case law. As the potentially record-setting value of the ball indicates, opportunities are few and far between, and courts have little direction for how to determine ownership of a small yet priceless item that ends up in a crowd fighting for control. Many scholars analyzing the law of first possession, including Larissa Katz in her article Equitable Remedies: Protecting "What We Have Coming to Us," recognize the complexity of first possession law. But they have not yet identified a concrete solution that protects the interests of both the complete possessor and the pre-possessor, if pre-possessor interest is comparable to complete possession.

While the court in Popov tried to protect both complete possession interests and pre-possessory interests, it may not be possible to do so. The theory of first possession itself is competition-based, and it urges against employing remedies like equitable division. According to Dotan Oliar and James Y. Stern's "on Time: First Possession in Property and Intellectual Property," first possession theory aims to "resolve disputes among rival contenders for exclusive rights in the same resource." This area of the law is meant to "set the conditions for the acquisition of exclusive rights as such, establishing what a person must do for exclusive rights to vest, whether in tangible property or intellectual property."

Baseball exemplifies, maybe most of all sports, the argument that there are no ties in competition—e.g., the tie goes to the runner; games have gone on for 26 innings until one team has won. If first possession law espoused by the court in Popov was meant "to award exclusive rights" to the possessor of the ball, then how could the court have identified two such exclusive possessors?

Critics of the Popov decision, including Angela Fernandez in "Fuzzy Rules and Clear Enough Standards: The Uses and Abuses of Pierson v Post," have argued that courts should not force those competing for exclusive interest in property "to share the proceeds of its sale." They assert that such a result defeats the role of the court in determining property disputes. They argue the court in Popov lacked the proper legal foundation to conclude that both had equal rights in the property. One critic, Geoffrey Rapp, implied in "Field of Broken Dreams: The Quest for Rule-of-Law in Sports Litigation" that the subject of the dispute played a role in the court's decision. As Rapp pointed out, "It is hard to imagine a court imposing equitable division, say, in a dispute over ownership of a piece of real property between two commercial actors."

Time will tell if and how the Florida court will split Ohtani's 50/50 ball between Matus and Belanski. But as with any competition, there will always be a winner in the race to first possession.

Patrick Judd is an associate in Phelps Dunbar's litigation group, helping companies resolve high-stakes disputes involving business operations, professional liability and company leadership, and appeals. Clients benefit from his deep understanding of case law and court proceedings, gained from federal clerkship experience, to navigate each stage of litigation.