By Edward H. Schauder, Esq.
“Can I get it back?” This is a question that I’ve heard raised several times during my career as a sports attorney and always in the same context.
The first time that this question was posed to me the voice on the other end of the phone was a frail, elderly African American gentleman who was introduced to me by Richard Berg, a music producer. I did not know at the time that the call would change my life forever. The voice belonged to Jimmie Crutchfield who played for the Pittsburgh Crawfords in the old Negro Leagues. Prior to Jackie Robinson breaking the color barrier in April 1947, men of color were prohibited from playing Major League Baseball and had no choice but to establish and play in their own segregated baseball league- the Negro Leagues.
“I brought my glove to a reunion in Ashland Kentucky. They said that they were going to display it in a Museum for Black Baseball,” Mr. Crutchfield stated, his voice filled with emotion. “Well, that never got off the ground. Instead of giving me back my glove, without my permission or knowledge, they went ahead and donated to the Baseball Hall of Fame in Cooperstown, New York where it is gathering dust! Now, if they have no intention of displaying it over there—Can I get it back?”
Beginning in July in the summer of 1979, dozens of former Negro League players were invited to Ashland Kentucky for the first Negro League Baseball Reunion. That first reunion evolved into an annual reunion that was sponsored by Ashland Oil. Eventually, the players were asked to donate items from their Negro League careers for the establishment of a Negro League Museum that was to be located in Ashland Kentucky. Many players complied. Jimmie Crutchfiled donated his glove. Eventually Ashland Oil experienced financial difficulties and funding stopped. The annual reunions ceased and the fledgling Negro League Museum closed. The Ashland artifacts were donated to the Baseball Hall of Fame in Cooperstown and many of the artifacts eventually found its way to the Negro League Museum in Kansas City, Missouri.
My mind raced when I was asked that simple question. Who was Jimmie Crutchfield? The Pittsburgh Crawfords and the Negro Leagues? I never heard of them before! This initial conversation with Mr. Crutchfield was the genesis of my co-founding with Mr. Berg the Negro League Baseball Players Association in October of 1990 with a mission to honor and celebrate the significant contribution of Negro Leagues players to baseball and American history, to collect and preserve that history, to educate others so that Negro League players may be a source of pride and inspiration for generations to come, and to support and promote the general and financial well-being of former Negro Leagues players. When Mr. Berg and I formed the not-for-profit organization in 1990, the organization was comprised of more than 80 former Negro league players including Hall of Famers Monte Irvin and Buck Leonard. The average age of the membership was 73 years old and the median income is less than $10,000 annually. My former law firm agreed to represent the association on a pro bono basis and this incredible life changing experience was my entry into the world of sports.
“Can I get it back”?
Ironically, the last time I heard this question was in June 2013 and this time the voice at the other end of the phone was none other than Mr. Berg. Mr. Berg was definitely not happy.
In January 2003 an amazing exhibit entitled ‘‘Pride against Prejudice: The Negro Leagues,” opened at the Yogi Berra Museum & Learning Center at Montclair State University. The show, in one display case, previewed the museum’s newest acquisition at the time, a collection of memorabilia of the Negro leagues. On view in the museum were over 400 artifacts comprised of bats, baseballs, programs, yearbooks, newspaper articles, letters and uniforms, as well as photographs. Many of the items related to the New Jersey teams in the black leagues—the best known of which were the Newark Eagles and the Atlantic City Bacharach Giants.
The collection had belonged to Mr. Berg whose passion to preserve the history of the Negro Leagues led him to compile this historic collection through the years. Mr. Berg had amassed the collection from 1989 to 2002, acquiring items from auctions, memorabilia dealers and directly from players. Mr. Berg sold his collection to the Yogi Berra Museum for only $300,000 even though aappraisers at the time estimated that the items could have fetched two to three times that amount if auctioned off separately. When asked why he settled for less money, Mr. Berg responded that he wanted the collection kept intact and in the New York metro area, particularly given the teams’ history in Newark, Jersey City and Paterson, New Jersey.
“It was sitting in my closet gathering dust,” he said at the time. “I said, ‘Why don’t we get the money out of it and send it somewhere where people can enjoy it?’ This stuff doesn’t belong in anyone’s closet.” According to Mr. Berg, the Yogi Berra Museum had promised him that they would raise money and build a permanent wing at the Museum to display his collection for many generations to come.
Apparently, a decade later, plans had changed. “I just found out that they sold it! The Museum sold my collection without even telling me!” Mr. Berg lamented during our recent telephone call. “Can they do that? Can I get it back?”
“Can I get it back?” “Can they sell the items that I donated?”
Recently, more and more sports franchises are establishing museums of their own, either at the Ball Park or Stadiums, to celebrate their franchise’s history and accomplishments. For instance, the New York Yankees built a magnificent museum at the New Yankees Stadium showcasing the franchise’s storied history and Citi Field, which is the home of the New York Mets, incorporates The Jackie Robinson Rotunda, a 19,000 sq. ft. space that engulfs the history of the famous player’s life and achievements’. Adjacent to the Jackie Robinson Rotunda the Mets have also built a team museum celebrating their franchise’s history. Similarly, a majority of teams within Major League Baseball such as the Kansas City Royals, Tampa Bay Rays, and many more have their own museums and or displays. As the creation of these museums increase, the need for appropriate artifacts to display is also increasing.
It is estimated that the sports memorabilia industry, including vintage memorabilia, exceeded $2 billion in 2012. More often than not, many such artifacts are now in the hands of private collectors. Accordingly, such collectors are asked to donate, sell or lend rare artifacts to add to display at these museums.
To help avoid any misunderstandings between the proprietors of these team sports museums and the collectors who are asked to donate, sell or lend such artifacts, the remainder of this article will explore several practical considerations that team General Counsels and potential donors should consider to avoid disputes over donated items down the road.
What is the intention of the donor when providing an artifact to a team Sports
This may appear to be a very straight forward question, but many potential disputes over items that are donated to team museums can be avoided if the intention of the donor is clearly fleshed out and addressed in writing before a team accepts an artifact or collection from a donor. Artifacts are donated to sports museums for a variety of reasons and emotions ranging from altruism to ego and greed. A “donor” may be motivated by one or more of the following factors set forth below (which is not intended to be an exhaustive list):
Depending of the legal status of the museum, a donation may entitle the donor to an income tax deduction of the full fair market value of the artifact or collection as of the date of donation and the avoidance of the tax on capital gains on artifacts that are expected to appreciate in value over time;
While many museums have a strict policy against purchasing artifacts some museums will purchase significant artifacts and “donors” may sell artifacts for a variety of reasons ranging from cash liquidity needs to a desire to upgrade their collections with the proceeds from the sale;
A donor might want to simply show his family, friends and clients that he or she has items displayed in a team’s Hall of Fame, become well known or desire to create a lasting family legacy with the team and its museum;
To the extent that an artifact has significant historical significance to a particular franchise, a donor may want to sincerely and unselfishly share the artifact with a much larger audience of the team’s fan base[1];
A donor might want to honor the memory of a family member who played for a particular team by offering artifacts from his playing days for display;
Anyone who saw the movie The Sandlot (where a group of kids inadvertently play and destroy an authentically autographed Babe Ruth baseball owned by the character played by Dennis Leary) will appreciate this factor! Preservation is another reason why people donate artifacts to museums since most team museums provide and maintain protective, climate controlled and insured environments that would protect the value of the artifact;
Some donations to team museums are made with an expectation or even a formal understanding of deriving certain benefits from the team such as throwing out the first pitch or receiving free tickets to various home games; and
Some individuals intend to lend their artifacts to a sports museum with an intention to get the items back after a specified period of time and subsequently sell the displayed items with a (justifiable) expectation that the fact that the artifact was displayed in a team’s museum will increase the value of the items in any resale.
Does a team have a right to “deaccession”
“Deaccessioning” is the process by which an archive, museum, or library permanently removes accessioned materials (i.e, collections, series, record groups) from its holdings.
Obviously, a donor’s motives, intentions and expectations when donating an item for display in a team’s museum will have a very strong correlation as to whether there is a reasonable argument to be made that the donor is entitled to get his or her item back or, as further discussed below, “deaccessioning” of the item is permitted. Surprisingly, the answer to this question frequently does not lend itself to a “black and white” response and often falls into a gray area that will depend on the facts and circumstances surrounding the donation in question. Among the various factors to consider are the following:
Was there a written or verbal agreement between the team and the donor that specified if the item was a permanent donation or “on loan” to the team for a specified period of time;
Did the donor receive any cash or in-kind consideration for the donated item;
Is the ownership of the donated article in dispute;
If consideration was received by the donor, did the team or museum make any promises to the donor to induce the donor to sell the item (such as a promise to “permanently display” the item in the museum); and
Has the donated artifact been “abandoned” by the donor.
Abandonment is an issue that many of the world’s greatest museums face when an historic artifact was donated to a museum and, over the decades and centuries, the donor dies and there is no record of his or her heirs. While team museums are for the most part a relatively recent development and it is difficult to compare the donation of a Michael Jordan game used jersey to a donation of a Picasso to the Metropolitan Museum of Art, there still may be times where a donor or even a lender passes away and there may be no apparent successor or heir to the original donor. While beyond the scope of this article, General Counsels of franchises with a team’s museum should familiarize themselves with their state’s abandonment laws.[2]
Assuming that after careful consideration of the foregoing questions and the facts and circumstances surrounding the donation of the artifact in question, a team believes that they are on solid ground that the item was donated or sold to the team outright and without any contractual covenants or strings attached to the donation, it is well established that museums may “deaccession” artifacts that were donated to a museum.
Are there any restrictions placed on a team when they deaccession an item?
Before a sports museum may deaccession an item, they must consider certain legal and ethical consideration.
Legal Considerations
“Deaccessioning” issues have often been litigated in the non-sports museum realm in connection with heirlooms that have been donated over past decades and even centuries. The primary legal consideration before an artifact or collection may be deaccessioned by a team museum is to resolve any legal ownership disputes with respect to the artifacts and collection before deaccessioning can occur. An analysis of the questions posed above and the particular facts and circumstances surrounding the donation will help answer these questions.
It may be useful for General Counsels of sports teams to note that in determining who owns the collection (the repository or the donor) courts have focused on whether or not there was a signed deed of gift which granted ownership to the institution and, if so, where there any stipulations pertaining to deaccessioning.
Generally, there are several important lessons to be learned from these disputes with traditional museums:
If there is no stipulation in the deed of gift restricting deaccessioning, then courts have typically ruled that the archivist may proceed to deaccession according to the repository’s policies.
If there are any such restrictions in the deed of gift, these restrictions are often negotiated and modified in a formal agreement with the donor or, if the donor is deceased, the donor’s heirs or estate.
When there is no deed of gift, repositories generally have three options to resolve this issue: An institution may contact the donor or heirs, if known, for a deed of gift in case the collection will be retained or to secure an agreement that allows for deaccession;
An institution may acquire ownership through the state’s abandoned property laws; or
An institution can check the donor’s tax records and if the donor took a tax deduction on the artifact or collection, this in effect implies that the donor gifted it to the repository.
Ethical Considerations
In addition to the legal considerations addressed above, sports museums should also consider the ethical considerations that have been promulgated by the Society of American Archivists (the “SAA”). Founded in 1936, the SAA is North America’s oldest and largest national archival professional association. The SAA has promulgated a Code of Ethics for Archivists (the “Code”), which was approved by the SAA Council in February 2005 and revised January 2012)[3] While a complete summary of the Code is beyond the scope of this article, prudence dictates that General Counsels and curators of sports teams with museum should familiarize themselves with the SAA Code of Ethics.
One of the concepts set forth in the Code is that deaccessioning collections for the primary purpose of generating operating income for the institutions, satisfying personal interests, aversions, or prejudices: and pleasing donors or resource allocators are not consistent with best practices or the Code. In addition, the Code goes on to state that deaccessioning should not be used to raise funds for budget shortfalls or emergencies. Sale of collections can be the result of the process, but should not be the impetus or driving factor of taking on the process.
How can disputes be avoided?
Set forth below are several best practice suggestions for teams to consider in determining whether or not to accept an artifact or collection from potential donors:
A team should have clear understanding of a donor’s intention, motives and expectations in transferring an artifact;
Sport team museums should develop and provide potential donors with booklets or guidelines on the donating process and include the benefits, risks, procedures and policies of the specific museum.
Teams should enter into a clearly drafted written agreement with donors that clearly define the nature of the transfer (loan or gift) and that sets forth all material terms and conditions to the donation including deaccessioning rights, conditions precedent and subsequent to the grants and rights of first refusal, if any.[4]
Teams should develop a well-defined policy and process illustrating the general steps, problems, and solutions to accountable and ethical deaccessioning and educate their museum curators and potential donors on such policy and policy.
Even if not legally required to do so, if a decision has been made to deaccession an item teams should consider meeting with, calling or sending a donor or such donor’s heirs a friendly letter to explain the situation and explore possible alternatives such as a transfer of the item to another museum or the repurchase of the item by the donor or heirs.
To avoid disputes, the team and/or donors should retain an attorney, tax advisor and/or a valuation that assists clients in acquisitions, sales, charitable contributions, charitable trusts, loans to museums, artifacts as collateral loans, collection managements, collection estate planning, and the appraisal of historical property.
The author is the Chairman of the Sports and Entertainment Law Practice Group at Sichenzia Ross Friedman Ference LLP in New York. The author has negotiated numerous athletic endorsement agreements and is considered to be an expert in sports licensing and sponsorships. The author would like to thank Josh Grossman for his help in researching for this article. For further information, please contact the author at eschauder@srff.com or visit the firm’s website at www.srff.com.
[1] For example, my boyhood idol, New York Mets all-time great Hall of Fame Tom Seaver, has allowed the team to display one of his Cy Young Awards in the team’s museum. Many Olympians are also donating Olympic-worn gear and other items they hope will raise money in support of Right To Play programs which is an international humanitarian organization that uses sport and play programs to improve health, develop life skills and foster peace for children and communities around the world
[2] General Counsels are encouraged to visit www.archivists.org/saagroups/acq-app/abandonedlist.asp which is a website that provides an overview of every state’s abandonment laws.
[3] http://www2.archivists.org/statements/saa-core-values-statement-and-code-of-ethics#code_of_ethics
[4] It is interesting to note that even though Mr. Berg received consideration from the Yogi Berra Museum for his collection, one way he could have assured that his collection would remain intact in the event of an eventual deaccessioning of the collection was to have negotiated for a right of first refusal to buy back the collection in such a circumstance.
