By Edward H. Schauder
“Can I get it back?”
That simple question has shaped much of my thinking about sports memorabilia, museums and donor rights.
The first time I heard it came from Jimmie Crutchfield, who played for the Pittsburgh Crawfords in the Negro Leagues. Prior to Jackie Robinson breaking Major League Baseball’s color barrier in 1947, players of color had no choice but to establish and play in their own segregated Negro Leagues.
Mr. Crutchfield told me he had donated his glove during one of the Negro League reunions held in Ashland, Kentucky, where organizers planned to establish a museum dedicated to Black baseball history. When the museum ultimately closed, the artifacts were transferred to the Baseball Hall of Fame in Cooperstown and later many found their way to the Negro Leagues Baseball Museum in Kansas City.
His question was simple.
“Can I get it back?”
That conversation became the catalyst for an incredible, life-changing experience. In 1990, Richard Berg and I co-founded the Negro League Baseball Players Association, whose mission was to honor and celebrate the contributions of Negro League players, preserve that history, educate future generations and support former players.
Years later, I heard that same question again.
This time it came from Richard Berg.
In 2003, the Yogi Berra Museum acquired Berg’s extensive collection of Negro League memorabilia, including bats, baseballs, uniforms, photographs and other historic artifacts. According to Berg, he accepted substantially less than the appraised value of the collection because he believed it would remain together in a permanent museum exhibit where the public could enjoy it for generations.
Nearly a decade later, Berg learned the museum had sold the collection.
His immediate reaction was familiar:
“Can they do that? Can I get it back?”
As more professional sports franchises establish museums to celebrate their history, these questions are becoming increasingly important. Many museums rely on artifacts donated, sold or loaned by former players, collectors and their families. Understanding the legal rights associated with those transfers can help avoid disputes long after the memorabilia changes hands.
Understanding the Donor’s Intent
Many disputes can be avoided if a donor’s intentions are clearly understood before an artifact is accepted.
Not every transfer is motivated by the same objective. Some individuals donate artifacts because of potential tax benefits. Others sell memorabilia because they need the money. Some want the recognition that comes with having an item displayed in a team museum, while others simply want to preserve an important piece of sports history or honor the memory of a family member.
Some transfers are intended to be permanent gifts. Others are loans with the expectation that the item will eventually be returned.
Understanding those expectations from the beginning allows the transaction to be properly documented.
Can a Museum Sell or Transfer a Donated Artifact?
Museums use the term “deaccessioning” to describe the process of permanently removing an artifact from their collection, whether by selling, transferring or otherwise disposing of it. Whether a museum has the legal right to do so depends largely on two factors: the donor’s intent at the time the artifact was transferred and whether that understanding was properly documented in writing.
Among the questions that should be considered are whether there was a written agreement specifying if the item was intended as a permanent donation or a loan, whether the agreement addressed the museum’s right to sell or transfer the artifact in the future, whether the donor received cash or other consideration, whether the transfer included conditions such as a commitment to permanently display the item, and whether the artifact may have been abandoned. Because team museums are a relatively recent development, addressing these issues before accepting an artifact can help avoid misunderstandings and future disputes.
Legal and Ethical Considerations
Before deaccessioning an artifact, museums should evaluate both legal and ethical considerations.
From a legal standpoint, courts have often focused on whether ownership was transferred through a written agreement and whether that agreement imposed restrictions on future disposition of the artifact. When agreements clearly address deaccessioning rights, those provisions generally control.
Museums should also be mindful of the ethical principles established by the Society of American Archivists. Among other things, those principles discourage deaccessioning collections primarily to generate operating income or address budget shortfalls.
Practical Steps to Help Avoid Future Disputes
Sports organizations can reduce the likelihood of future disputes by taking a proactive approach before accepting memorabilia or other artifacts. That begins with understanding the donor’s intentions, motivations and expectations, verifying the authenticity of the item and confirming the donor has the legal authority to transfer it.
Teams should also enter into a written agreement that clearly defines whether the transfer is a gift or a loan and addresses all material terms, including whether the artifact may be sold or transferred in the future. Establishing written donation policies and a clear process for handling future decisions regarding the disposition of artifacts can further help avoid misunderstandings. Even when not legally required, maintaining open communication with donors or their heirs before selling or transferring an artifact may provide an opportunity to explore alternatives, such as transferring the item to another museum or allowing the donor to repurchase it.
Finally, sports organizations should consider consulting experienced legal counsel, tax advisors, memorabilia authenticators, valuation experts and insurance professionals when appropriate.
Preserving History While Preventing Future Disputes
Sports museums play an important role in preserving the history of athletes, teams and the games they represent. Careful planning at the time an artifact is transferred can help protect both the institution and the donor while reducing the likelihood of future disputes.
Whether the artifact is donated, sold or loaned, clearly documenting the parties’ intentions from the outset is often the best way to avoid hearing the question:
“Can I get it back?”
Edward H. Schauder is an attorney at Nason Yeager. His practice focuses on sports law, intellectual property, licensing, branding and commercial transactions. Before joining the firm, he served as Executive Vice President of Licensing and General Counsel for Steiner Sports, where he negotiated sponsorship, endorsement, licensing and partnership agreements involving athletes, teams and major sports brands.
