That boy in the picture, that's who was robbed.
Is there precedent in this case? Yes. The baseball is like the whale that Swift and Gifford were chasing in 1872 and the fox that Pierson and Post were pursuing seven decades earlier: an unowned moving object whose possession comes into dispute between two parties. That much, the lawyers of Mr. Popov and Mr. Hayashi agree on.
The whale was awarded to Gifford because his harpoon entered it first, and the fox to Pierson because his bullet mortally wounded it—each man thus exerting dominion over the contested object.
Surprise! Popov's and Hayashi's lawyers disagree dramatically over what constitutes dominion when the wild animal is Barry Bonds's 73rd.
Hayashi's lawyer, Tamaki—along with Cal law professor John Dwyer, his legal consultant—contend that that dominion is exerted over a baseball in the stands, by common practice established over decades, when a customer holds up the ball to display ownership, as Patrick was first to do. "It's not enough to throw a harpoon that grazes the whale or to shoot a bullet that hits the fox's ear," declares Dwyer. "The harpoon's got to stick in the whale. The bullet's got to kill the fox. You have to successfully assert ownership in the rule of capture." The moral of their story: A fan should be able to pursue a ball in the stands without fear of being sued.
Popov's attorney, Triano—along with Tulsa law professor Paul Finkelman, his expert witness—believe that Alex achieved dominion by spearing the ball from the sky with his glove. Any other interpretation, they say, rewards the violent behavior of those who separated him from the ball. "The rule of capture is designed to prevent the melee over the whale or the fox," says Finkelman. "[Tamaki's] interpretation of it encourages the melee. If the San Francisco police were doing their job, they'd go through the video and arrest everyone who can be identified and charge him with assault." The moral of their story: A fan should be able to pursue a ball in the stands without fear of being mugged.
"If Hayashi wins, would you bring your children into the bleachers when A-Rod's going for Number 756?" asks Todd McFarlane, the comic-book and toy tycoon who watched the value of his McGwire No. 70 ball plummet an estimated 75% thanks to Barry Bonds. "How do you know some 250-pound guy won't do a belly flop for the ball and permanently compress your child into the bleachers? Whoever catches it first should be the guy who gets it. But we'll probably wait till an eight-year-old gets his ribcage crushed."
"Mr. Popov's crying over spilt milk," counters Michael Barnes, the agent who helped broker the sale of the ball to McFarlane. "He had a glove on and couldn't hang on to it. Popov has nothing to blame except his own lack of baseball skill."
If Solomon were deciding the case, he'd no doubt award the ball to both men and have them split the proceeds from its sale—or award it to neither, and use the million bucks to buy baseballs for kids who can't afford one. But Solomon wouldn't have a prayer in an American civil courtroom, where it's all or nothing, and one party or the other must win the lawsuit and get the ball.