More New Cal Football Death Cover-Up Documents: Vice Chancellor Limited Scope of ‘Review’ and Allocated Only 20 Hours of Work For Co-Investigator

Concussion Inc.’s ebook THE TED AGU PAPERS: A Black Life That Mattered — And the Secret History of a Covered-Up Death in University of California Football is available on Kindle-friendly devices at http://amzn.to/2aA2LDl. One hundred percent of royalties are being donated to sickle cell trait research and education.

by Irvin Muchnick

The University of California-Berkeley vice chancellor who commissioned what the associate athletic director called “the ‘review’” of the football strength and conditioning program of head coach Sonny Dykes’ assistant Damon Harrington, following the 2014 death of player Ted Agu, issued instructions and scope of work so limited that they seemed designed to produce a whitewash report. And one of the report co-authors signed a consultant agreement confining his investigation to only 20 hours of work.

These are the main findings from the latest three internal university documents that were trickled out to Concussion Inc. yesterday by the campus California Public Records Act (PRA) compliance office.

These documents had themselves been previously withheld by Cal — even during the release, following eight months of delays, of 46 pages of emails revealing some, but not all, of the internal deliberations of university officials following the Agu death and the evidently Harrington-inspired criminal teammate-on-teammate beating in November 2013 by J.D. Hinnant against Fabiano Hale.

The records were finally given to this reporter, after office hours yesterday, and after I had pointed out to UC system president Janet Napolitano and university lawyers and compliance officers that, as attachments referenced within the 46 pages already produced, they were clearly subject to PRA disclosure.

According to experts in public records law, Berkeley’s two-part document release (perhaps timed as a pre-holiday “bad news dump,” in the parlance of public relations) still falls far short of adequate. For example, there is still nothing in these emails about deliberations prior to the commissioning of the review conducted by Cal sports insiders Dr. Jeffrey Tanji of UC Davis Medical Center and John Murray, a San Francisco athletic trainer. And it is far from intuitive that John Wilton, then a vice chancellor, wrote his charging letter without the generation of a single memo or note by himself or other officials.

Among the questions the documents so far do not even begin to answer are:

• How did Wilton, then-athletic director Sandy Barbour (now AD at Penn State), then-deputy athletic director Solly Fulp (who now holds down a newly created mid-six-figures position in the university administration), and others process the March 2014 whistleblower statement to campus police by player Joey Mahalic?

• How did they decide on what associate athletic director Ryan Cobb termed a “‘review’” — quotation marks his — as a solution to what they would later acknowledge to be institutional civil liability in a $4.75 million wrongful death settlement with Ted Agu’s family?

• How did they arrive at the choices of Tanji and Murray for the study of Harrington’s strength and conditioning program?

What needs to be reemphasized is that the core underlying event was death. Even in sexual assault cases, there are often — even usually — elements of narrative ambiguity, such as consent and “he said/she said” differences of perspective. However, when Agu succumbed to a known, but initially covered-up, exertional attack, as a carrier of sickle cell trait, the outcome was clinical, fatal, and final.

Therefore, Concussion Inc. continues to contemplate PRA litigation in state court should the University of California continue to withhold pertinent records.

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Yesterday’s new documents, which will be further explored in future posts, are simple.

The first is Vice Chancellor Wilton’s March 26, 2014, charge letter to Tanji, which includes four bullet points:

“1. Are the program’s training practices, and in particular, the intensity of workouts, consistent with protection of student-athlete health and safety and with training practices in college and university sports programs at this level?

2. Has the strength and conditioning staff used training inappropriately for punitive purposes?

3. Have strength and conditioning coaches used abusive language or engaged in abusive actions toward players?

4. Is the level of medical monitoring of workouts appropriate and has the medical team responded appropriately when student-athletes have shown signs of distress?”

The charge letter makes no reference to Agu, Hinnant-Hale, or the Mahalic whistleblower police statements about them — see https://concussioninc.net/?p=11384. Nor does the letter say anything about the university’s 141 pages of material on the Agu death incident and its background; all but 29 of them were withheld from Alameda County sheriff detectives gathering information to support the work of the coroner who would promulgate findings of Agu’s cause of death — see https://concussioninc.net/?p=11120.

(The county originally ruled the death a generic cardiac episode, but in an extraordinary move, later changed the finding to include the factor of sickle cell trait, in light of deposition testimony during the Agu family lawsuit.)

The Tanji-Murray report, issued three months after their commission, would give Cal football a clean bill of health on all four counts of Wilton’s charge. One of the loopholes in the charge letter was the context of comparison “with training practices in college and university sports programs at this level.” This seemed to invite the reviewers to grade Dykes and Harrington not as educators expected to adhere to UC’s own established standards, but rather “on the curve” of the college football industry.

The second new document, a “scope of work” addendum to the university purchasing department in connection with Murray’s consulting contract, similarly cramps the definition of the reviewer’s mission: “Perform on campus interviews of selected staff, coaches and student athletes” and “Measure against community and comparable institution standards and make observations and recommendations.”

Strikingly, both the scope of work and Murray’s contract (the third new document) specify only 20 hours of work, at $150 per hour plus per diem expenses. The earlier 46 pages of documents already demonstrated the heavy hand of athletic department executives Barbour, Fulp, and Cobb in gaming the selection of the Tanji-Murray interviewees and ensuring that Tanji and Murray could quickly wrap up their work. There is no provision in the charging documents for the most basic provison of any investigation: the emergence of conflicting or open-ended testimony that would require additional time, or techniques other than one set of slotted 20-minute interviews in a choreographed line at the Simpson Center for Student-Athlete High Performance.

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On Tuesday — after receiving a first set of documents from the Berkeley campus PRA office but before receiving these new ones — Concussion Inc. had emailed Nancy O’Malley, the Alameda County district attorney, asking whether her office deemed the evidence worthy of criminal investigation; and if not, why not. The D.A. has not yet responded.

P.S. Wednesday 12/21 2:30 p.m. PST. Teresa Drenick, spokesperson for O’Malley, said, “The DA’s Office does not have further comment on the matter at this point in time.”

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“Explainer: How ‘Insider’ Access Made San Francisco Chronicle and Berkeley J-School Miss Real Story Behind Death of Cal Football’s Ted Agu,” https://concussioninc.net/?p=10931

Complete headline links to our Ted Agu series: https://concussioninc.net/?p=10877