Vermont Bar Journal, Vol. 40, No. 2 Vermont Bar Journal, Fall 2018, Vol. 44, No. 3 | Page 45

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the Sherman Act. According to Baltimore,
the defendant Leagues’ teams travel across
state lines to play each other was sufficient
to establish business practices in restraint
of interstate commerce for purposes of the
Sherman Act.
In a 1922 opinion written by Justice Ol-
iver Wendell Holmes, the Supreme Court
held that the “business” of baseball were
the games themselves, and that the travel to
the games was merely incidental. In other
words, Holmes held that “baseball was pure-
ly a state affair” 2 and therefore beyond the
reach of the federal antitrust laws. The au-
thors note that the decision is out of step
with the current big-business reality of pro-
fessional baseball, but suggest that baseball
in 1922 was not nearly as commercialized as
it is today. Nevertheless, the Supreme Court
revisited the baseball antitrust exemption on
different facts in 1972 and declined to dis-
turb its 1922 precedent. 3 As Minan and Cole
describe the decision, the Court recognized
that its 1922 precedent was an aberration,
but it was reluctant to overturn a fifty-year
old precedent on stare decisis grounds. The
Court deferred to the legislature on the is-
sue. Congress passed the Curt Flood Act in
1998 extending antitrust protections to the
realm of baseball, but the law limited cover-
age only to Major League Baseball labor is-
sues. The antitrust exemption for baseball
remains in place today.
Baseball fans who enter the fray for a ball
hit into the stands might want to review Alex
Popov v. Patrick Hayashi, a 2002 decision
of the California Superior Court. Applying
a combination of law and equity, the court
settled competing claims to legal posses-
sion of Barry Bonds’ 73 rd home run ball. As
a general rule, the home team supplying the
baseballs for the game generally abandons
its claim to a ball once it leaves the playing
field. That means principles of property law
govern in the stands to settle spectator dis-
putes over loose balls. In this case, Popov
caught Bonds’ home run in the top part of
the glove’s webbing (a “snow-cone” catch).
During the ensuing jostling by other fans at-
tempting to catch the ball, the ball fell from
Popov’s glove and was picked up by Hayas-
hi. Hayashi had the ball in his possession
when the scramble was over and claimed
entitlement to it. Popov sued Hayashi for
conversion and “trespass to chattel.” But in
order to prove those theories, Popov had to
show that he had actual possession of the
ball before the alleged conversion or tres-
pass. In the end, the court found merit in
both sides’ arguments and held that both
men had equal claims to the ball. According
to the court, the only fair thing to do was to
sell it and divide the proceeds equally. The
authors remind us that the proceeds of such
a sale are likely taxable.
The book also takes up the issue of tort lia-
bility for intentional conduct during play that
THE VERMONT BAR JOURNAL • FALL 2018
causes physical injury. The classic example
is when a pitcher deliberately throws a pitch
at the batter. In the case of Avila v. Citrus
Community College District (2006), college
baseball player Jose Avila sued an opposing
team’s collegiate district, after the oppos-
ing team’s pitcher allegedly struck him in the
head intentionally with a pitch. Avila sought
damages under theories of battery and neg-
ligence. The case ultimately made its way
to the California Supreme Court. Rejecting
the defense claim that the district was enti-
tled to statutory public entity immunity, the
court addressed whether assumption of the
risk doctrine precluded liability. Under that
doctrine, liability will not be found for “inju-
ries arising from those risks inherent to the
sport.” 4 Notwithstanding the intentional na-
ture of the pitch thrown at Avila, the Califor-
nia Supreme Court held that “being inten-
tionally thrown at is a fundamental part and
inherent risk of the sport of baseball.” 5 The
court explained its concern that applying
tort liability in this context might change the
very nature of the game of baseball. As the
authors summed it up, “[t]he beanball ap-
pears to be an inherent risk of the game and,
therefore, outside the law of negligence as
well as intentional torts.” 6
These are just four representative exam-
ples of the eighteen included in the book.
Each chapter presents a concise and enter-
ta ining exposition of how the law applies in
factual scenarios common to baseball. And
while lawsuits about baseball will never join
Gehrig’s farewell speech or Updike’s essay
on Ted Williams in the canon of baseball’s
cultural essentials, they do add another in-
teresting perspective on the game. If noth-
ing else, the next time another fan in the
stands contests your right to keep a foul ball
that slipped through his hands, hopefully he
will back off when you explain to him that
a protected property right requires not only
intent to possess, but also a certain amount
of actual control of the ball.
____________________
Kevin J. Doyle, Esq. is First Assistant U.S.
Attorney at the U.S. Attorney’s Office in Bur-
lington. The opinions expressed in this re-
view are the author’s alone and do not re-
flect the views of the United States Attor-
ney’s Office or the U.S. Department of Jus-
tice.
____________________
ly-turned double play, the perfectly-placed
bunt down the third base line, the no-hitter,
the lawsuits. Maybe not the lawsuits. But as
law professors John Minan and Kevin Cole
explain in The Little White Book of Baseball
Law, baseball broadly defined has been the
subject of court disputes for over a hundred
years. The book is an entertaining and light
read on the intersection of legal principles
and baseball-related facts.
Minan and Cole recount the remarkably
diverse array of legal disputes over the years
that have centered around baseball. The
book samples reported cases in which courts
have considered baseball under every con-
ceivable legal theory, from a nineteenth cen-
tury patent law challenge involving an early
catcher’s mask design, to liability for negli-
gent medical assistance to an injured spec-
tator, and everything in between. The book
opens with a 2000 federal case in the Dis-
trict of Massachusetts arising out of an ap-
parent “ticket-scalping” incident at Fenway
Park before a Red Sox-Yankees game. The
Boston Police Department (BPD) arrested
plaintiff Gary Lainer for selling a ticket for
face-value to another fan outside the stadi-
um. Lainer sued the BPD, alleging a viola-
tion of his constitutional rights and seeking
injunctive relief against BPD’s ticket-scalping
enforcement policies. The crux of the legal
issue was that while Massachusetts law pro-
hibited the “business of reselling any ticket
. . . without being licensed,” the BPD had
a policy of arresting anyone reselling game
tickets, for any amount, in a public area. The
federal court granted the preliminary injunc-
tion, which enjoined the police from arrest-
ing or prosecuting any person for selling a
ticket at Fenway at or below face-value, un-
less the police had probable cause to be-
lieve that the person was in the business of
reselling tickets and did not have a license
to do so.
In another chapter, the authors explain the
legal origins of baseball’s century-long ex-
emption from the federal antitrust laws, spe-
cifically the Sherman Antitrust Act. This pro-
tected status (a privilege the Supreme Court
has not extended to basketball, boxing, or
football) dates to the formative years of or-
ganized professional baseball. Ten years af-
ter the 1903 creation of the American and
National Leagues, a group of well-heeled
businessmen created a competitor league
known as the “Federal League.” The three
leagues eventually reached an understand-
ing in 1915 that called for the termination
of the Federal League, and also permitted
some, but not all, of the Federal League
members to buy franchises in the American
or National League. For some unexplained
reason, Baltimore was excluded from this
potentially lucrative opportunity. Baltimore
brought suit against the Leagues and others,
claiming an unlawful conspiracy to monopo-
lize the business of baseball in violation of
1
George Will, Men at Work: The Craft of Base-
ball, Macmillan 1990, at p. 4
2
The Little White Book of Baseball Law, p. 44.
3
Flood v. Kuhn et al., 407 U.S. 258 (1972).
4
The Little White Book of Baseball Law, p. 177.
5
Id. (quoting Avila).
6
Id. at 179.
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