When Barry Bonds' 73rd home run ball dropped from the sky and almost literally into their laps in October 2001, Daniel Popov and Patrick Hayashi faced the enticing prospect of becoming very wealthy very quickly.
The value of the Bonds ball they wrestled over nearly 16 months ago hasn't changed much since the Giants' slugger launched it into the stands that sun-splashed afternoon in San Francisco. Sports memorabilia dealers still peg it at about $1 million.
But after a fierce court struggle that has dragged on for more than a year, neither Hayashi nor Popov can count on a killer payday anymore.
Much of what they realize from a sale of the prized ball will go to pay lawyers and defray other court costs. Factor in another 5 percent auction commission, capital gains tax and miscellaneous expenses and, jokes memorabilia dealer Michael Barnes, "There's not enough [money] left for a decent-sized house in San Francisco. Or even a down payment on one."
And the legal meter is still ticking despite a Dec. 18 decision by California Superior Court Judge Kevin McCarthy ordering the ball sold and the proceeds split between Popov and Hayashi. The two sides are still warring over how and when to sell the ball.
"It's a classic example of emotionalism affecting two parties' ability to make a reasonable judgment about whether to take a case to trial or to settle," said Joseph Rand, an adjunct professor at Fordham University Law School who has closely followed the Bonds baseball case.
Hayashi, 37, who was sued by Popov for allegedly wrenching the ball away from him in the post-home-run melee, has a contingency fee agreement with his lawyers. Some near the case place the fee at 33 percent, while others say it approaches 40 percent. If the Bonds ball fetched $1 million (of which Hayashi is entitled to half), the Hayashi legal team could collect as much as $200,000, the sources said.
Popov, a 38-year-old restaurant owner, may be forking over a similar share of his spoils. He is paying his lawyers hourly. A source close to the case estimated Popov's legal bills so far at well over $100,000. The San Francisco Chronicle recently put the fees near $200,000.
As 2003 dawned, Popov and Hayashi were still keeping their lawyers busy. In McCarthy's December order effectively ending the dispute, the parties were directed to submit a plan for selling the ball by Dec. 30.
As of early January there was no plan. The sides were said to be far apart on what the next step should be.
"It's gotten to the point where these two men could not agree that the sky is blue," Rand said. "They're that committed to their positions, that unbudgeable."
Such friction has marked the case from the beginning. University of Tulsa Law School professor Paul Finkelman, who during the trial was an expert witness for Popov, questioned whether Hayashi's lawyers at times intentionally delayed the case in an effort to run up Popov's litigation costs.
Finkelman cited his own deposition, which, he said, had to be scheduled on short notice because of demands made by Hayashi's lawyers. Had he been able to make travel plans weeks ahead, Finkelman said, his round-trip airfare from Oklahoma to the West Coast could have been under $500. On a moment's notice, he ended up with a roughly $1,700 ticket.
"My sense was that the defense strategy, in part, was to bleed the plaintiff," Finkelman said.
Martin Triano, Popov's lawyer, agreed with Finkelman, saying, "A lot of their tactics were 'slash and burn' to run up the cost on Alex. They knew he was [retaining his lawyers] on an hourly basis."
Hayashi's lawyer, Don Tamaki, rejected Finkelman's view, saying the deposition schedule in the case was driven by tight deadlines imposed by the court and "faced by both sides" rather than "any fantasy to drive up the costs of one side or the other."
Further, Tamaki said it was expert witnesses, including Finkelman, who added significantly to the cost of litigating the case. The defense attorney said Finkelman billed his side $450 an hour for his time during depositions. And, he added, other experts retained by Popov charged from $300 to $450 per hour.
"If these gentlemen charged Mr. Popov for their services at the same rates they billed us for the privilege of taking their depositions, I would concur that Mr. Popov's costs were high," he said. "But those costs were driven up by the experts that Mr. Popov voluntarily retained to support his lawsuit."
And in a "final irony," Tamaki said, the entire court battle could have been averted if Popov had accepted Hayashi's offer before trial to sell the ball and divide the profits. Triano disputes that and says Hayashi's settlement offers before the judge's decision always were 80 percent for him, 20 percent for Popov.
Now Popov and Hayashi need to put aside old grievances and get the Bonds ball to auction by spring. Memorabilia dealer Barnes, an adviser to Hayashi, believes the best time to start the bidding would be April, with the baseball season under way yet before a Bonds or a Sammy Sosa has time to put in jeopardy the single-season home run record that the prized ball represents.
Waiting any longer could be very expensive. That's something even Popov and Hayashi ought to be able to agree on.
Mark Hyman (mhyman@sportsbusinessjournal.com) is a writer and a lawyer.
