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Go Deep! Who's Entitled to the Brady Ball, and is $500k Reasonable?

Go Deep! Who's Entitled to the Brady Ball, and is $500k Reasonable?
October 28, 2021
Dylan Dittrich

For a few hours on Sunday afternoon, the conversation on NFL Twitter was dominated by a football in ways not seen since DeflateGate. At the center, as he so often is, was Tom Brady - only this time, we weren’t talking PSI or natural gas law. Instead, suddenly, everyone on Twitter became a memorabilia expert and/or a negotiating savant.

Given the absolute certainty of strategy set forth by Twitter fingers across the nation, we’re left to wonder if some of these folks could secure the passage of a bipartisan infrastructure bill through Congress, broker world peace, or even more unthinkably, negotiate a club friendly deal with a Scott Boras client.

Nonetheless, the large public outcry ensured that Byron Kennedy – the man on the receiving end of unsolicited advice and criticism from hundreds of thousands – received a better haul than would have otherwise been the case. The final proceeds:

·       Two signed Brady jerseys and a signed helmet

·       Signed Mike Evans jersey

·       Signed game-worn Mike Evans cleats

·       Season tickets for 2021 and 2022 seasons

·       $1,000 voucher to the team store (arguably the most insulting and arbitrary of the bunch)

·       1 Bitcoin

Kennedy has also requested a round of golf with the GOAT, with no news on that front to date. Maybe those memorabilia items - because of the fascinating and prolific provenance – one day take on a higher value than they otherwise would, but there is still obvious consensus that the all-in value of the package falls multiples short of the $500,000 number popularly bandied about the internet. That number, quoted as a minimum figure, originated from Ken Goldin of Goldin Auctions.

For me, the situation raised numerous questions, but most chiefly among them:  1) just how entitled to the ball was Kennedy, and 2) what can we point to in order to build a case around that $500,000 figure or another value?

Everybody wants to give Kennedy a hard time, to extol the virtues of what they would’ve done differently, to flex their superior guile….

….but did Kennedy actually have any right to the ball in the first place?

Now, I doubt he was considering the legal complexities of property rights and what constitutes a transfer thereof when he relinquished the ball to the Bucs employee sent to retrieve it; rather, he simply felt in the moment that he had little claim to a ball that Brady had earned over the course of a long career. He was quoted as saying, “you can’t say no to Tom Brady. He’s asking for his 600th touchdown football back, he’s the one who earned it. I just got lucky and happened to be there at the right time.”

Just a standup guy realizing that he hadn’t done anything to deserve the ball and that it would be more appropriately possessed by the man who turned an ordinary pigskin into something so valuable.

What if Kennedy wasn’t such a standup guy in that moment though? What if, realizing the life-changing nature of the money at stake, he was unyielding and simply suggested Brady should be the highest bidder?

Could he do that? Or should he be prepared for legal warfare?

The topic is one that has been hotly debated by both sharp legal minds and armchair judges for decades, most frequently in the context of milestone home run baseballs.

Who owns a ball that goes into the stands?

More commonly, issues of baseball ownership are contested between two fans, rather than between club or player and fan. Take, for example, the 73rd home run ball hit by Barry Bonds back in 2001. That ball was caught by Alex Popov before he was attacked by a swarm of people who knocked the ball loose. In the melee, Patrick Hayashi, who played no role in knocking down Popov, was also knocked over; the prized ball then rolled to him and was claimed as his own.

The court ruled that Popov possessed the ball and had intent to possess it – according to the court, the orthodox view of possession requires union of these two elements. To possess it, he achieved “complete control of the ball at a point in time that the momentum of the ball and the momentum of the fan while attempting to catch the ball ceases.” Incidental contact knocking the ball loose before momentum had ceased would mean the ball was not possessed. (Jim Nantz voice: Let’s bring in Gene Steratore to break this down for us. Gene?)

Because Popov had possessed the ball in the court’s view, and because he was caused to lose it by unlawful means, the court ruled he did have claim to the property. However, Hayashi had similarly come by the ball lawfully, and the court simultaneously ruled that he too had rights to the ball. The solution? Sell it and split the proceeds evenly. Those proceeds ended up being $450,000, but more on that later.

Now, one issue that was essentially altogether ignored in this civil case was whether any fan actually owned the ball or whether it belonged to MLB, the home team, or the batter. The two parties agreed that, before it was hit, the ball was property of MLB; after it was hit, it became intentionally abandoned property. Whether that is indeed legally the case is highly disputed.

In 2009, Ryan Howard of the Phillies hit his 200th career home run against the Marlins in Miami. Twelve-year-old Jennifer Valdivia, attending the game with her fifteen-year-old brother, retrieved the milestone ball. Of course, Howard wanted the ball back. Valdivia was invited to the Phillies’ clubhouse, where, ployed with cotton candy, she was coerced into trading the ball for another autographed Howard ball.

Tsk, tsk.

Valdivia’s family retained a lawyer, requested the ball be returned, and filed suit months later. The Phillies quickly yielded and back the ball went.

Whether they did so simply to avoid further bad press or because they felt there were legal grounds to suggest she really did own the ball is unknown. Had the legal belief been that the Marlins owned the ball, seemingly, the situation could have been more easily rectified.

There are a few arguments that can be made to suggest the property right to the ball is transferred to the fan. The first is familiar from the Popov/Hayashi case – the ball becomes abandoned property or a donative transfer once it is hit and leaves the playing field. The idea there is that the player, by virtue of trying to hit a home run, has intentionally abandoned the property or that the team has willingly gifted the ball to the fan.

To abandon property, the owner – in this case the home team – must dispose of it with intent to relinquish all legal rights to it. With baseballs, it’s difficult to say that the team has cast away the property, since it remains on property that is theirs, and it’s even more difficult to say they intend to abandon it, particularly if they make an effort to reclaim it.

Now, this is seemingly more tricky in the case of Evans tossing the ball into the stands. It’s hard to argue that he hasn’t cast away the property with intent. But whether he has done so irrevocably and if he is empowered to make that decision on behalf of his employer and the property owner, the Buccaneers, is another question – one for an actual attorney though like the Twitter negotiators, I’m doing my armchair best. The Bucs’ action of sending an employee to request the ball back seemingly does inject uncertainty as to whether the ball has passed the abandonment test: time must pass without the owner requesting the property back, and certainly, sufficient time hadn’t passed in that case.

The other argument made is that by purchasing a ticket, the fan has entered into a contract with the team that stipulates they’re entitled to keep a ball they catch or receive. Because fans are known to receive balls from time to time, the chance of such an experience would be intrinsically part of the value of the ticket that was purchased. I.e.  Kennedy would say that when I bought this ticket in the front row, I paid what I did because I thought maybe I’d get a ball.

Opponents of this argument suggest that the probability of getting a ball is quite low, and that the probability of getting a milestone ball is significantly lower, so that the expected monetary value shouldn’t figure into the contract. Unless the ability to keep balls irrevocably is explicitly addressed, it would seem the contract argument is fairly flimsy. Not to mention, Kennedy admitted he didn’t initially realize the magnitude of what he had received.

There are further arguments to bolster the player’s or the team’s case. The labor theory of property rights suggests that ownership can be justified by the labor an individual imparts to a good. In this case, the ball was worth effectively nothing until Brady’s labor – his pass-throwing prowess in that game and over a career – was imparted to it. That labor multiplied the value astronomically. The magnitude of that increase would trigger what’s called the doctrine of accession, conveying ownership rights to the creator. This is effectively the argument that Kennedy intuitively recognized: this ball is only valuable because Brady threw it and because of all he achieved that led to this moment, shouldn’t the ball belong to him?

There are countless other angles to this debate – if you find it interesting, I encourage you to check out this paper by law professor Steven Semeraro, who was at SMU at the time.

As it pertains to a potential Kennedy vs. Brady dispute, it’s likely that most arguments would favor the Bucs and/or Brady. The Buccaneers owned the football, and a fan ending up with that ball while still on the team’s property in all likelihood doesn’t transfer property ownership, particularly since the Buccaneers promptly sought to reclaim it. Of course, the circumstances are particularly interesting given that Evans did temporarily gift the ball with the intent of doing so. In any case, Kennedy’s claim to ownership seems to be by no means a slam dunk, and therefore entering that legal battle could have been a long, expensive, and arduous process.

Alas, what’s done is done. The ball is nestled safely under Tom’s pillow and Kennedy has been compensated. Receiving a value approaching $100k simply for being in the right place in the right time is a fortunate outcome no matter how you slice it.

But just so we’re all on the same page – what kind of money could he have gotten for that illustrious pigskin?

The world of milestone memorabilia has been thoroughly dominated by baseball over the past twenty years. Record chases in other sports simply haven’t captured the excitement of the American public in quite the same way as the home run chases of the late 1990s and 2000s; the American fascination with dingers is difficult to eclipse. Perhaps there is a numbness to football milestones given the more passing-friendly evolution of the game and the inevitable assault on the record books by Manning, then Brees, and now Brady.

Still, given the shifting popularity of the two sports, with the NFL ever-growing in popularity and baseball clawing to maintain its relevance, in addition to the expanding legacy and cultural relevance of Tom Brady, it would not be unreasonable to look to those milestone baseball sales to inform our understanding of the Brady ball.

If we travel back to the 1998 home run chase, when Mark McGwire and Sammy Sosa did battle to break the decades old single season record, we encounter our first eye-popping sale. A man named Phil Ozersky caught the 70th home run ball that would stand as the all-time mark for a few years. According to Darren Rovell, he was offered a signed bat, ball, and jersey for it by the Cardinals. Sound familiar? He also wanted to meet McGwire. Sounding even more familiar? McGwire declined (uh, what?). No deal!

Ozersky sold it months later to Todd McFarlane for $3.05mm ($5.06mm inflation adjusted).

Fast forward five years. In 2003, Barry Bonds sets the new single season mark at 73 home runs. Alex Popov and Patrick Hayashi have dual claims to the ball. They sell it for $450k. That’s no $3 million, but it’s nothing to sneeze at. In fact, it’s $671k in today’s dollars, accounting only for inflation and not the broader uptick in collecting interest.

Fast forward another year and a lot more dingers. Bonds has just hit his 700th home run, joining Hank Aaron and Babe Ruth as the only men to achieve that feat. Again, there’s a melee. Again, one man claims to have possessed the ball first. Again, it rolls to another man in said melee. This time, the courts don’t find any sympathy for the man who claimed to have possessed it first. The second man, Steve Williams, auctions the ball for $804k (north of $1 million today). Oddly, the ball sold again the next year for $85k.

Another few years. Even more dingers. Bonds achieves the immortal feat of slugging home run 755 to tie Aaron and three days later, sends 756 over the fence to claim the throne. Both of those balls sell at SCP Auctions in August of 2007. 755 sells for $187k, while the record-breaking 756 garners $752k (just shy of $1mm today). Already, of course, suspicions of his steroid use abound, but the milestone pieces still captured those huge values.

The 762nd and final home run ball came to auction in 2019 at Goldin, selling for $276k with the option to be inscribed by Bonds himself. This was well after the player’s steroid-related legal troubles and subsequent fall from grace. Those same troubles plagued McGwire, and Ken Goldin and David Kohler (of SCP Auctions) were quoted in 2020 estimating the value of the 70th home run ball at $250-300k and $250-400k respectively.

Now, Brady isn’t exactly clean of any controversy, but nobody would contend that DeflateGate remotely approaches the level of reputational damage that steroids inflicted on the baseball stars. He’s the undisputed GOAT in his sport, winning an unparalleled number of Super Bowls, playing at a high level for an unprecedented amount of time, and reaching statistical totals never before seen. 600 touchdowns is a level never reached by any other man.

In contrast, the steroid-tainted Alex Rodriguez reached 500 home runs, a feat achieved at the time by 26 other men. That ball sold for $104k in 2010. A-Rod reached 600 home runs, a feat achieved at the time by seven other men. That ball, inscribed, sold for $97k in 2019 at SCP Auctions. Certainly, his reputation was somewhat tainted in 2010, and more thoroughly tarnished in 2019.

Let’s set sullied reputations aside for a moment. Tony Gwynn, one of the best pure hitters in baseball history, needed the third fewest games to reach 3,000 hits, a feat 31 other men have now accomplished. His 3,000th hit ball sold for $143k in 2017. Frank Robinson, a Hall of Famer but not one considered notable enough in the Hobby to be included in PSA’s bat pop report, just had his 500th home run bat bought out for $200k on Collectable.

Let’s pivot away from baseball, and speaking of pivoting, Kareem Abdul-Jabbar was pretty good at it, scoring more points in the NBA than any other player in history. The ball used to score his last points in the NBA, establishing the record, sold for $270k in 2019 with Goldin Auctions and is now open for IPO on Collectable at a $375k market cap.

While Brady’s milestone accomplishment doesn’t stack up to the home run fervor of the early 2000s, the unrivaled career success and cultural relevance he’s achieved make a compelling argument for such an important ball to command a multiple of some of the more recent examples we’ve covered, entering that $500k - $1mm range. The challenge, however, is that the track record for football memorabilia selling at those levels is almost nonexistent. There is only one football precedent, and it belongs to Brady. After all, when it comes to football, Brady is unprecedented.

Just a month ago, Leland's sold the ball photo-matched to Brady's first career touchdown for $429k. We really need go no further. If you believe the 600th touchdown ball is more valuable, you're pretty easily reaching $500k and beyond. Is the ball from this milestone that no other player has ever reached (or likely will reach within a decade) a more significant piece of memorabilia than the ball that launched the greatest career of all time? Hard to go wrong, but, for better or worse, the widespread coverage and discussion around this ball likely tips the scales.

Brady's first NFL touchdown ball. Photo: Leland's.

But just so we’re on the same page and to be thorough, what else are we working with for football sales historically? At the pinnacle is Bruce Smith’s Heisman Trophy, selling for $395k back in 2005. While his playing career was not quite as long as Brady’s, lasting 27 glorious seconds, Daniel “Rudy” Ruettiger’s gear from that Hollywood-immortalized game sold for $241.5k in 2017. Or, if we wanted to continue the trend of ignominy seen in baseball, we can point to OJ Simpson’s Heisman, which sold for $230k back in 1999. If we want to talk milestones, Emmitt Smith's uniform from the game where he surpassed 10,000 yards sits at $46k on Collectable.

As far as game-used footballs go, we’ll have to delve even lower. Most expensive was the Johnny Unitas/Raymond Berry touchdown ball from “the Greatest Game Ever Played,” the 1958 NFL Championship. That sold for $62k in 2016 at Huggins and Scott, twelve years after it sold for $48k at Leland’s. In 2014, SCP Auctions sold a game-used ball from the most lopsided game in history, a 222-0 Georgia Tech victory over Cumberland in 1916, for $40k. I wonder if Cumberland covered the spread.

And what of Brady related balls? The highest selling one, aside from the debut touchdown, is related to Brady’s own ignominious moment: in September of this year, Leland’s sold a game-used ball from the 2015 AFC Championship DeflateGate game for $25k. Just this weekend, Goldin Auctions sold two key Brady balls. The first, signed and inscribed by Brady, corresponds with a 55 yard touchdown pass Brady threw to Josh Gordon in a (relatively unimportant) 2018 Patriots victory over the Packers. That sold for $13.5k. The second was a game-used, signed, and inscribed ball from the 2017 Super Bowl, in which the Patriots came back from a 28-3 deficit to beat the Falcons. That sold for $11k, a figure the winning bidder has to be feeling good about this week. And in winter 2021, Leland’s sold a game-used ball from Brady and the Patriots’ first Super Bowl victory over the Rams for $14k.

These other results give reason for pause. The football memorabilia track record is weak, and the 28-3 Super Bowl ball going for just $11k raises eyebrows (though to be fair, that’s not a 1-of-1). But if the debut touchdown ball is indeed such an outlier, there's no reason 600 couldn't be too. Really, we’re left to rely on sales from other sports – principally baseball – to justify high six figure values for the Brady ball that take it beyond the debut touchdown ball.

Of course, if anybody can cross the sport chasm, it’s Brady. After all, it’s only his cards in football (a few Mahomes sales aside) that have consistently been able to draw levels reserved for athletes from other sports. His Championship Ticket cards are consistently drawing $1.5mm at auction recently in BGS 8.5 grades, though that grade has previously garnered over $2mm,and a BGS 9 drew $3.1mm at Leland’s earlier this year. Those sales, not isolated incidents, are at the levels of only Hobby icons. So, if ever there were to be a wealthy and eager audience for football milestone memorabilia, it’s fair to assume that it would be linked to Brady, and this milestone is as strong as any (though can we really rule out 700 or - gulp – 800?).

Once a figure like the $500k one here is proliferated throughout media, both social and traditional, the way it was, it becomes somewhat of a self-fulfilling prophecy, setting a floor. And the notoriety achieved for this ball from the widespread coverage and debate would serve to draw it nearer to those iconic baseball home run record balls.

But if Mike Evans hadn’t tossed the ball into the stands, we’d never be discussing it. If Kennedy had taken the ball and run, perhaps it’s settled quietly with Brady at a higher level or perhaps he ends up wildly wealthy from it. Alternatively though, his claim to the ball could’ve been challenged altogether, Tom Brady might’ve hated his guts, his life could’ve been temporarily consumed by legal battles, and he could’ve been tied up long enough to see his ball eclipsed by touchdown 700. Of course, Kennedy says he would’ve kept the ball anyways.

Sure, pal. But when you get down in the dumps as everyone on the internet insists you screwed up, remember, it might not have gone as perfectly as they all say.

Cheer up, HODL, and start working on that golf game, Byron. I’m sure Brady will take you up on it eventually, right?!

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