Of course, if Lucchino's initial reaction to CHB's article had been to laugh it off instead of basically saying "Yeah, that scumbag we just traded stole our ball" maybe Minky would have been in more of a giving mood.

After the way they treated him, why should Mientkiewicz meekly say "Okay, here's your ball back"? "See you in court" would seem like a mild retort compared to what he might have actually said.

How do you think Mientkiewicz felt when one of the team's co-owners decided to make this an international front page story in the self proclaimed "Newspaper of Record" the New York Times?

The willingness of Lucchino, the Dentist and the rest of them to use the media to destroy those who cross them, in however mild a manner, is truly disturbing. Nomar, Manny, Pedro, Theo, Mientkiewicz...

You think the players notice this pattern? You think Tito doesn't wonder "What will they say about me when they fire me?"

This was almost the first thread on SoSH where everyone was in agreement. Damn lawyers.

"If we don't get that ball back, RSN membership card sales will suffer!"

Bush league. Act like you've been there is right.

Keep up the good work Snake & Dentist.

I decided tonight that I will no longer support this ownership as much as I have in the past. I will not go to as many games this next summer, perhaps only one or two. I have had it, this is the last straw.

But, apparently, there's alot of other "fans" who see things differently. Boston.com has a poll going right now, on the Sports page, and the question is simply who should get the ball. Currently, the proportion think the Sox should have it is 63.3% versus 36.6% who think Doug should own it.

I was surprised...

Doesn't the Dentist have better things to do?

Gosh, the Official Mouthpiece's poll shows support for the media conglomerate partly-owned subsidiary? I'm shocked!

Bets that CHB is one the phone with the Dentist getting talking points for tomorrow's column as I type this?

Well Anne, we're smarter than the average bear (Bruin?).

Well, most of us anyway. (insert lame emoticon here)

We are, Scrub, we are...it's so tiring to encounter those others, isn't it?! B)

Every legal expert that I heard says that Minky-Winky has absolutely no right to the ball, it is either MLB, the Cardinals or the Red Sox and I am 100% sure that MLB and the Cards would be happy to donate it to the Sox (or the HOF - and I do not think the Sox would mind too much).
Why should the Sox pay Minky Winky for something he does not own ? He was already paid plenty for catching balls. The persecution of the FO is going very far around here. Do we want Foulke to run to 1B to make the out himself, so he can keep the ball and make an extra few 100K?

I've had it with ownership. I am not going to a SINGLE Red Sox game at Fenway Park next summer.....

I have better things to waste my money on than this group of greedy millionaires.



Its been this way forever, the player who makes the last out keeps the ball. Why should this ownership change that? Yes, technically, the sox, mlb or the Cards may own the rights, but sometimes, you have to do the right thing. Its safe to say that most of red sox nation doesn't care at all about this ball...let it friggan go. This also sets a precedent for future owners/fans/players. It could get even uglier in the future.

I'll take any extra tickets you may have.

Keep political posts out of this thread. Period.

Thats assuming I can get lucky enough to win a lottery so i may have the slight chance to purchase tickets that I can't afford anymore because they have gotten too ridiculously expensive.

You all should be happy to know that because this was filed as a DJ (Declaratory Judgment) Action, it ends up on what is known as the "Average" track for purposes of scheduling events in the litigation. Unless the parties resolve this peacefully or if they agree to a discovery order that shortens the typical time period for an A track matter, this little issue will still be getting litigated about 2 years from now...This thread may never die...

I am certainly no legal expert, but it is my understanding that our legal system works on the principle of precedence. Given the fact that previous players have kept final out ball and currently claim ownership to those balls, a precedence has been set. I believe the Red Sox will have a very difficult time in court. Frankly I hope they lose.

I believe someone posted a summary pasted from USA Today, on an earlier page of this thread.

Our legal system is based partlyy on ''precedent,' but that is "case precedent" not whatever the people were doing previously precedent. The legal system is also based on Law, ie. Actual laws. Meaning, the legislature passes them and the people have to follow them. Just because everyone has been jaywalking at a certain intersection for 20 years does not preclude a cop from writing a ticket to the next jaywalker, because that's the law...

The law here as we understand it, is well settled. An employee in Minky's position does not have the right to keep the souveneirs (I really can't spell that word, it's like a mental block) they get in the course of their employment. Not only that, but his contract, which is subject to the CBA basically disavows him of any right to do so, if it could be argued (which I don't think it can) that he had any right to do so in the first place...

I have to think that there have been at least discussions or plans to open a Red Sox museum, perhaps even as part of the complete redevelopment of the Fenway Park area. They just opened a Sports Museum as part of the Camden Yards complex down here, so it must be on their radar screen.

I'd also be interested in knowing whether they are going after the ball for the MFY series, which Lowe has according to the article that PKB posted.

From Law.com's legal dictionary:

"Precedent: 1) n. a prior reported opinion of an appeals court which establishes the legal rule (authority) in the future on the same legal question decided in the prior judgment. Thus, "the rule in Fishbeck v. Gladfelter is precedent for the issue before the court in this case." The doctrine that a lower court must follow a precedent is called stare decisis 2) adj. before, as in the term "condition precedent," which is a situation which must exist before a party to a contract has to perform." (emphasis added.)

just because everyone in the world has jaywalked a zillion times does not make it legal (edit: sorry DOTB, didn't see your example before I posted).

See I told you I wasn't a legal expert Thanks for the clarification.

I still think the Red Sox are wrong here and I still hope they lose.

I have a question for some of the more legally savy posters. How is this different from a fan catching a home run? Who does the ball legally belong to in that case?

If JWH or some other front-office type is reading this thread, I'd love to get an answer to one simple question: If the ball is a "piece of club history" that needs to remain "accessible to all our fans," how then do they justify MLB's sale of Terry Francona's Game Four lineup card to the highest bidder?

See: http://www.msnbc.msn.com/id/6726370/

I know the NY-based hedge fund manager who bought the lineup card. He actually told me that he was rebuffed by the Red Sox when he offered to make it available for some sort of public display.

I believe that the license you have to watch the game (i.e. your ticket) states that you may retain balls hit into the stands. Thus, you've been explicitly given the right to keep it whereas a player has not. Sounds silly, but as DotB correctly noted there has to be a basis for the creation of the property right....

Those of us who find the Red Sox ball-grab distateful are not, I think, particularly concerned with who ultimately gets possession of the baseball. If Boston.com had framed the issue this way...

"Should the Red Sox just shut the F up and stop worrying about the ball?"

...I think you'd see an overwhelming percentage of "Yes" responses. I'm certainly in that camp. The question of legal ownership does not interest me, and I seriously doubt the team is thinking only of their beloved fans in their efforts to acquire the ball. They have chosen a course of action that makes the Red Sox appear incredibly hostile toward players and ex-players, and it's the middle of the free agent signing period. This is simply embarrassing and foolish.

(edit: clarity, grammar)

OK, what about the Bonds homers that are hit out of the park and land in McCovey's Cove? The people retrieving those balls, and selling them, never purchased a ticket.

Someone wrote a law review article on that topic, actually, though I don't have a cite.

The team in theory could assert an ownership right, but in that case the more likely resolution is that the team surrendered ownership rights by not attempting to recover the ball as soon as it left the park.

Also, and more important, is the fact that Minky obtained the property in the course of doing his job for the Boston Red Sox. If you are working in a warehouse and the delivery which arrives has (say) a box of cash amongst the other boxes wouldn't you feel that the company, or the sender, has priority over the guy who happened to open it as part of his job?

A fan is not an employee of the team.

What if Boston.com framed the issue this way: is it in the best interests of the Boston Red Sox to make sure that the legal rights to the ball are decided through the proper channels?



I'm sorry, I just cannot see that any potential free agent would care one whit about what the Sox do or don't do in relation to this ball.

I agree with all of that. Mientkiewicz has no "right" to the ball. But as Mientkiewicz isn't the guy filing the suit, his right to the ball is not the first issue here. The first issue here is: do the Sox have any right to the ball?

I'm asking because I don't know the answer.

The team's argument that Mientkiewicz as a Sox employee has no right to the souvenirs he gets in the course of employment is relevant as between him and the Sox only if the ball 1) belonged to the Sox before Mientkiewicz took possession of it, or 2) by some law or MLB regulation reverted to the Sox after the game ended.

1) When the game was not yet over and the ball was in play, did the Sox "own" that ball?
2) When the game ended, did the ball become the Sox property?

If the answer to either of those questions is Yes, the Sox argument comes into play. But if the answer to both is No, the rightful owner of the ball is either Mientkiewicz or someone else, and it's up to that someone else to try to get it back if they want it. And unless that someone else is also an employer of Doug Mientkiewicz, they can't use the argument the Sox are using in this lawsuit.

Might not Major League Baseball have been the owner of the ball at Game 7? Are they Mientkiewicz's employer? If not, they would have to come up with some other argument for getting the ball back. The CBA might be that argument.

But basically, it's the old chesnut that possession is nine-tenths of the law. That you don't no rightful claim to something does not mean that just anyone can take it away from you. Someone who wants to take it from you legally has to have a rightful claim themselves. Judgments in matters like these are comparative; they don't presume to say whose ball it is, but rather which of the parties to the case has the more legitimate claim. In my experience it is always better to argue why you should have something first, with arguments about why the other guy shouldn't have it being the follow-up.

Further to that, there is another question that would probably come up: whether a claimant who was the rightful owner was so lazy about maintaining possession that he basically has waived his claim to the ball. I know that in real property law there is a concept of transfer by adverse possession - basically if a guy comes and squats on your land for ten years without you making adequate efforts to clear him off, he actually becomes the owner of the land on which he lives. I am sure there is an equivalent for personal property, and it's probably also called adverse possession. The requirements for adverse possession of real property are very hard to satisfy; I don't know if they would be easier for personal property, or what it would take to satisfy them in this situation.

I guess the real general underlying principle here is that it's not Doug Mientkiewicz's job to prove he has a right to the ball. It was his ball by possession and now it's his ball as lessor. Other people who want to own the ball have to prove why it's should be theirs - ass opposed to why it shouldn't be his.

It's worth noting, btw, that by signing what looks like a one-year lease with Mientkiewicz, the Sox kinda-sorta acknowledging that it's his ball. I am sure the agreement is filled with disclaimers that the lease agreement is not a quitclaim by the Sox, that the Sox by signing this in no way acknowledge that Mientkiewicz is the rightful owner of the ball, etc. But in practice lease agreements can have such a probative effect even if they are loaded down with disclaimers.

All that said, I think this is stupid and the Sox look like tools. It's a friggin' ball, for Christ's sake.

Well, the obvious answer is that the team does not own McCovey Cove (at least I don't think they do), just as the Sox don't own Landsdowne Street. As PKB has stated, they could assert an ownership right as to the balls that land outside of their private property, however they would probably need to do more than wait for someone else to find their property for them (ie. the guy who ends up with the ball). If they had an Agreement in place with the owner of the neighboring property, and if they had a number of employees stationed out there to recover their property in the event a ball got hit out there, I think they could actually be successful in a lawsuit against non-ticketed fans getting the balls outside the stadium.

Now, if the person who owns McCovey Cove (if such a person exists) could put up a No Trespassing sign, a la what people do who live next to Golf Courses, we would have a pretty interesting side debate as to whether the team could ever get the ball back from their neighbor...

Not in this context, I don't think, because it's really more a labor law and agency issue than property law.

The Sox have asserted a basis of ownership relative to Minky: he acquired the item during the course of his employment by the team, in the course of performing his contracted duties. Whether the Sox have a claim or not to it vis-a-vis the Card or MLB, their claim is thus superior to his claim. In other words, they are asserting that whatever rights he has to it actually belong to his employer, and then they will deal with other entities who may make a claim on it (MLB and the Cards).

I would be stunned if the Sox don't have statements (or P&S agreements for $1) from the Cards and MLB already, or an understanding they can get them.

That's true, but it puts the Sox in the uncomfortable position of arguing that they permitted Mientkiewicz to take to his house a ball the Sox didn't own, in his capacity as a Sox employee.

I am not convinced that the team's claim is superior to Mientkiewicz's claim anymore. Certainly the team's was a better claim when Game 7 ended. Mientkiewicz made his claim first, and if anyone tried to stop him at that time, they obviously backed off and let him take the ball home.

All players are agents or employees of their teams. No players are acknowledged to have a "right" to game or practice souvenirs. Yet teams regularly allow players to keep game souvenirs or give them away. The Sox decided this ball was more important than the average ball, but to my knowledge they didn't assert that claim until after Mientkiewicz took the ball in the quite reasonable assumption that he could do so.

Then, they contracted with him to borrow it. I know that in theory that's not supposed to imply anything, but it often does.

I think the ultimate issue here will be whether the Sox acted quickly and strongly enough to preserve their claim to the ball, in light of common practice with game souvenirs.

Maalox, what I think you are getting at with this post and with your prior post related to adverse possession is an "abandonment" claim. Essentially, you're saying that because the Sox didn't do anything upon the end of the game and because they waited to assert their claim and because they signed the Agreement, they may have essentially ceded their ownership rights. I think it's a valid argument, but one that will eventually fail.

First, the Sox cannot "abandon" a piece of property they do not own. If MLB or the Cards actually owned the ball, it wouldn't be the Sox ball to abandon, and if one of those organizations had assigned their rights subsequently to the Sox, I think the Sox are clear on the abandonment claim. I also think that the Red Sox would have really missed the boat if they hadn't been protecting their rights from the get go. They have a clear, explicit Employment contract with Minky which gives them ownership to the extent they can be owners of the ball. Any action by Minky in taking the ball was in breach of his Agreement of the team. They would not have to assert any ownership rights if Minky hadn't breached his contract. Essentially, you can't get to B without going through A in this scenario, and A is the fact that Minky took something in contravention of his employment agreement. Because teams, and even the Red Sox, have allowed this practice to take place for years does not help Minky here. It may help him avoid damages in a bad faith context because he can argue that mitigating circumstances (ie. custom and tradition) led him to believe reasonably that he could have the ball, however I don't think it helps him in the context of an ownership claim.

The fact that other teams have allowed other players to keep the baseballs isn't relevant to the agency relationship between the Sox and Minky, though, other than the think argument that there's an implied right under the CBA to do so---which is REALLY tough to argue under labor law. If the Sox have done so under this ownership group, that's a fact which would probably go towards course of performance and might help, though.

I think it's pretty tough to argue they didn't ask for their employee to return the property in a timely manner, but it's an argument Minky will probably try I guess.

If the Sox had been protecting their rights from the get-go, would that not have included telling players before Game 4, "Hey guys, if you catch the final ball, save it and give it to us?" If indeed it's common practice for players to keep game balls (which the team almost never wants anyway) would not such a notification have been, at the very least, sensible?

If Mientkiewicz had, instead of keeping the ball, thrown it to a fan, could the Sox have successfully sued Mientkiewicz for damages? Would the fact that balls are thrown to fans at the end of innings as a matter of practice be immaterial to the legitimacy of such claim?

Then something like eight people, all lawyers, would have responded to the poll question.



You can't imagine that a team competing with Boston for free agent talent would point out to a player that the Red Sox are suing one of the 25 over possession of a $14 baseball? Really?

If the Cardinals or MLB "abandoned" the ball by letting Minky leave with it, how can they then subsequently assign their rights to the ball to the Red Sox? They have no rights to the ball if they have already abandoned it.

I'm not getting the abandonment angle.


I'm not talking about the Sox abandoning property. I'm talking about them waiving their claim to property, or more precisely waiving the right to demand equitable relief. As I believe you stated, this case is not about who owns per se but who has the stronger claim. I'm saying that if the Sox had an opportunity to assert their claim and didn't, that may undermine a later claim made in court.

Basically, even if you have an agreement that says players have no right to something, if you openly and regularly allow them possession of that something as if they did have such a right, you forfeit the right to suddenly change your mind in one particular instance and say, "the black letter says our claim is stronger."

I think the disagreement we are having is one of those situations where law and equity diverge. This is in Suffolk Superior Court. Does Massachusetts have courts of Chancery?

I don't think the Sox would have had to put their players on notice prior to the game to assert their rights. Their contract was effectively the prior notice, IMO. Subsequent to the game, and as soon as the Sox found out Minky had the ball, I'm willing to bet there is a correspondence/demand letter from the Sox that was sent asserting their rights and putting him on notice of their claim. I think that would be plenty to disavow any sort of abandonment claim on the Sox part.

For your second question, I think your first question is actually much more difficult to deal with than the second. I think in the first situation, they may have been able to assert a damages claim against Minky and an ownership claim against the fan who received the ball. The former I don't think they would have done, but the latter I'm not so sure about. Asserting the ownership claim against the fan would have been easy, IMO, as they can simply make the argument that Minky had no legal right to give the ball to them, and because they don't qualify as a "bone fide purchaser" (ie. one protected by law who receives property from someone without legal title).

As for the fact that the Sox have allowed this practice to take place in the past: It's irrelevant. Every baseball in this situation would be a distinct and separate piece of property. Just because the Sox didn't protect their rights with respect to other baseballs doesn't disavow them of their right to do so in this case, especially when they have managed to give notice to the player prior to the player selling or giving the ball to someone else.

On the bona fide purchaser issue, this is why I asked the question earlier regarding "what would happen if Minky sold the ball to someone living in another country?" If someone had purchased that ball from Minky for fair market value, and they were unaware of the controversy surrounding ownership, the law could protect them from having to turn the ball over, but would not protect Minky from a lawsuit filed by the Sox. This is what makes the current safekeeping of the ball so important to the case...

You are making the assumption that the Cards or MLB abandoned the property. I don't think the facts here support that at all...

See what happens when the lawyers start to get involved?

Not only did MLB not take possession of the ball, they allowed it to be authenticated and returned to Mientkiewicz. How is this not the most important fact? Besides, as far as I'm concerned, it will never matter what the courts decide, if this case ever gets there. Even if the Sox are successful in their quest, I will consider said quest stupid, embarrassing, and petty. If the Sox hadn't acted like morons toward Doug and his family when this issue first came up, they'd probably have it by now. I am at the point now that I hope they never get it. This whole mess makes me sick to my stomach.

Maalox,
You edited this while I was responding to your original, freakin dopes...

I know of no concept by which a party can be estopped (which I believe would be the correct term in a waiver argument such as the one your making here) from asserting their ownership rights as to a piece of property as a result of their prior dealings with respect to separate and distinct (and of much different value) property...

I can't think of one either, although it seems to me that there should be one. If there is one it's not a form of estoppel, though. It would be a waiver. Perhaps am thinking along a civil procedure angle, of preserving objections in the first instance or else waiving them. The FRCP don't happen to extend to Major League Baseball, do they?

Waiver and Estoppel are kind of two sides to the same coin...Here is how the sentence would read:

When someone has waived their affirmative defense by not raising them in the Answer to the complaint, they are "estopped" from asserting those defenses at trial.

In our situation, you're arguing that the Red Sox can be viewed to have constructively waived their right to assert ownership as a result of how they have dealt with baseballs in the past. Essentially, they would be "estopped" from asserting the claim as a result of waiver.

However, the extension by which you are looking for would be going too far. For example, if a father has two kids and owns two cars. When the oldest kid turned 16, he began driving one of the vehicles. After driving the vehicle for a couple of years, he went to sell it. He forged his dad's signature on the title and sold the vehicle. His dad later found out and did nothing.

Son #2 then turns 16 and dad gives him the other car. He drives it for a couple of years and then he forges Dad's name and tries to sell it. Dad says no, you can't sell it, I own it. Has Dad, by virtue of the fact that he had done the exact same thing prior and allowed his other son to do what he did (illegally, much like what the players are doing is a breach of their contract) waived his right to assert ownership over the second car?

Now, I know the inherent problems with this analogy, but I couldn't think of a better one at the moment, although I'm sure there could be. Inferring that the Sox have waived their right to ownership over this ball (and by extension EVERY ball from here forward) as a result of what they have done with prior balls seems too far to go. Not all balls are the same, not all balls are worth the same and not all balls are as clean as others...


Yeah, I know the last sentence was a little much, but I think the point is valid and..oh, you know what I'm saying....

"Even if the Sox are successful in their quest, I will consider said quest stupid, embarrassing, and petty."

That's exactly how I feel. And lawyers haggling over legal nuances certainly isn't going to change my feelings on this, other than to make me even more disgusted with the Red Sox bush league move here.

Earth to lawyers: the legal thing isn't always the right thing. Just because you have a right doesn't mean it's always a good idea to go to court to excercise it.

Yeah, that will show them!

I understand this point, but I don't see it as Bush league. I see Minky's move as Bush League. Everyone on this planet knows that his ownership of that ball will only last as long as it takes for (a) the ball to reach its high in terms of value or (B) he needs the money.

It's surprising to me that fans of a team that play in a town such as Boston, which is littered with museums, culture, history, etc. don't understand the significance of the ball to some. It has meaning and if I spent $700 million on this team as this ownership group has, I'd be fighting for every piece of property that has historical value to my team as if my life depended on it. It's not just a ball. It represents, as much as the trophy does, a lot of hard work that this ownership group had to go through to win the World Series.

Bingo! Somehow, I can't envision Tom Brady, Rodney Harrison, or any other Patriot who may have ended up with the ball at the conclusion of the Super Bowl fighting to keep possession of the football. They are team players - Doug M. is only out to get what he can for himself.

It has nothing to do with "showing" them anything. Its a personal choice to not support the ownership in this case. I care for the players and team, not the money hungry owners.

For example, Paul Konerko gave the last-out ball to the White Sox owner. Didn't ask for anything, just did it because it's the right thing to do.