Friday, January 14, 2005



You see how lawyers can take a little thing, and .... ?

Gordon at Conglomerate has a neat little post applying hornbook agency law to the funky dispute between Doug Mientkiewicz and the Red Sox over the ball that was grounded into the final out of the 2004 World Series. Gordon suggests the general duty of loyalty owed by an employee to his employer under agency law holds that Mientkiewicz should cough up the ball to the Sox, while the property law concepts focused on by the ESPN columnist are a red herring.
The general duty from the Restatement (Second) of Agency §387 reads: "unless otherwise agreed, an agent is subject to a duty to his principal to act solely for the benefit of the principal in all matters connected with his agency." No matter who owned the ball when it was placed in the pitcher's glove, it's hard to imagine a scenario in which ownership transfers to Mientkiewicz over the Red Sox.
While I would normally bet heavily on Gordon in a legal analysis smackdown between him and any sportswriter, I have to suggest that Gordon has not provided the "A" answer on this law school exam question.

First, I would advise anyone writing for an audience that includes many legal academics and cheese afficionados who may not also be baseball fans, that the name Mientkiewicz should not be written without a pronunciation guide. (Men-kay-uh-vitch, I'm told.)

Second, the question of who owns property that is created or used in an employment relationship may not be settled entirely as a matter of property law, but it's not a pure agency question either. The Red Sox couldn't lay claim to Mientkiewicz's street clothes hanging in his locker during game 7 -- or more plausibly, his first-baseman's mitt -- on the theory that it was in their best interests to have those items in their museum display on the 2004 World Series, so that a duty of loyalty required him to hand over his property.

As Gordon rightly suggests, it's kind of weird to think that every ballplayer who gloves a baseball gains the right to own that ball, which is what Mientkiewicz's argument boils down to, but the reason is that the balls were supplied (and owned) by the team, and the team owns them just like the employer owns the pens it supplies to its employees.

I suppose an argument could be made that the ball has become special, and different from a generic $8 major league baseball, because of some efforts made by the players. Looked at this way, the ball might be like some invention made by engineer while in the employ of a company. We're getting somewhat out of my field here -- I know that employers engaged in lines of work in which intellectual property is created often subject their employees to aggressive contract clauses that give the employer ownership of inventions made even off site in the employee's spare time. In any event, the employer's entitlement to value created with tools and equipment owned by the employer and efforts expended by the employee within the course and scope of employment, seems like a pretty clear-cut thing, though I don't see it determined by the Restatement (Second) of Agency §387.

Mientkiewicz was obviously acting within the scope of employment when he caught the throw from shortstop (or was it second base? I forget) for the final out of the series. The Red Sox own the ball, even if Mientkiewicz, who is known for his fielding, had made a splendid pick of a throw in the dirt -- which, incidentally, he didn't, it being just a routine play.

I think the reason Mientkiewicz foolishly believes the ball is his is because he's thinking of fans who apparently own balls they catch in the stands. Sometimes a ballplayer will ask a fan for the ball as a souvenir if it was a home run ball of significance to the player. Mientkiewicz probably thinks it's like that -- a ball of special value -- and that he has simply cut out the middleman (the fan) by catching the ball himself.

That's pretty silly of him. Fans are different -- they don't work for the ball club. What's more, despite what fans and probably ballplayers might think, I seriously doubt that the fan's right to the ball arises because a law of "finders keepers" applies in ballparks. In the dead ball era, before 1920, balls hit into the stands would be retrieved from fans and put back in play. I seriously doubt that property law changed in 1920; what changed was custom. I suppose nowadays, there's an unwritten understanding that is arguably part of the contract in buying a ticket to a ball game that fans get to keep baseballs hit, or fouled or (increasingly) tossed to them by the ballplayers. But if the owners decided to post notices on tickets and around the stadium reserving the right to retrieve baseballs from the fans, I doubt that the fans would have much of a case.

But rights aside, how will the Mientkiewicz-RedSox dispute be resolved? Will the Sox file a lawsuit against their backup first baseman for replevin (a remedy in which the court would order return of the ball)? Does the baseball basic agreement require arbitration of this? Will they let it go because suing your own players creates bad clubhouse chemistry? Or maybe trade him and then sue him?

I was going to leave a little tip on New Years Resolutions and how to make the best of them.

Unfortunately, I would not be able to keep it brief.

Goal setting takes effort and you really have to know how to do it to do it well. Especially the follow-up.

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Have a GREAT day!
Have you done anything earth shattering lately?

Read anything that really sets your mind on fire with a passion to do good?

How about doing something important for yourself?

Have you?

Do you know without a doubt where life is taking you?

Got a Plan?

Know how to get there?

Most people don't. They just go through life hoping for the best. How can you possibly reach your dreams if you don't have a real plan?

A new year is coming. It's time to start thinking about your New Years Resolution and really start planning your life don't you think. Follow through on some of those old goals you had years ago.

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Happy New Year!
After a good read on blogs like this I like to leave little tips on goal setting. You know, the things you used to dream of when you were young, or even now.

A lot of research has shown that only those who set goals are likely to achieve their dreams.

When is the last time you really sat down and wrote a few short term and long term goals down?

What? It's been that long!

A new year is coming. You could do the same things you did this year and achieve the same results you did with your life dreams last year, or you could visit career goals and read all the FREE information on setting goals and getting what you want out of life


you could just piddle on through life hoping for the best, like most people do.

Which will it be?

You really can have a lot more of everything than you do now. All you gotta do is know what you want and have a plan.

Have a GREAT New Year!

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