Did Judge Jeffrey S. Brand Say ‘Credibility’? The Cal Football Strength and Conditioning Program Review That the Court Suggests Is a Good-Faith Substitute For the Secret 141 Pages of Campus Police Records in the Ted Agu Death

Published January 21st, 2019, Uncategorized

by Irvin Muchnick

 

As we reported last week, Alameda County Superior Court Judge Jeffrey S. Brand, who earlier had warned the University of California that it needed to show “a particularized and objective basis for suspecting criminal activity” in order to protect from public release the 141 pages of Berkeley campus police records in the 2014 Ted Agu football conditioning death, has tentatively ruled that the school complied and that the secret reports are exempt under the California Public Records Act (CPRA).

Such “particularized and objective basis” turned out not to be a fact or a set of facts pointing to reasonable suspicion of foul play in Agu’s death from a sickle cell trait-associated exertional attack during a bizarre and extreme drill under the supervision of Damon Harrington, the conditioning assistant for then Cal head football coach Sonny Dykes. Rather, the basis was simply that Margo Bennett, the campus police chief, and one of her lieutenants produced declarations swearing that whenever someone dies on campus, the police department treats the incident as a possible crime.

In other words, when a football player collapses and dies, it could be a crime. When a bicyclist collides with a vehicle and dies from trauma, it could be a crime. And when a 78-year-old professor sustains a fatal heart attack while working in his lab, it could be a crime; you just never know whether a graduate assistant slipped some cyanide into that beaker before the professor turned on the bunsen burner.

Concussion Inc.’s view, obviously, is that this approach turns on its head the policies, principles, and intent of CPRA. Moving forward, it could seriously impede the constitutionally grounded work of all journalists. Public universities in California now have a get-out-of-CPRA-free card. All they have to do is assign controversial deaths to the campus police department and stamp the reports “possible crime — well, at least for a second or two before we realized it wasn’t.”

With or without court-ordered production of the 141 pages, I’ll continue reporting the mainstream media-neglected narrative of UC Berkeley’s cover-up of the circumstances of the Ted Agu death, which culminated in the payment of $4.75 million in public funds to make the family’s wrongful death lawsuit go away.

In this piece I want to focus on the following passage in Judge Brand’s tentative ruling:

 

“The court considered whether the Regents and/or UCB conducted any investigation other than the [Police] Department’s investigation. The court considered this issue in the context of evaluating the credibility of the Regents. If the UC treats any death on campus as so serious that it warrants a criminal investigation, then the Regents would presumably conduct inquiry into the circumstances surrounding any death on campus for the purpose of reviewing issues relating to student conduct and safety. The absence of a separate investigation would have raised credibility questions regarding whether the Department’s concern with campus deaths was overstated and/or whether UCB was using the Department’s law enforcement investigation as a cloak for a student conduct and safety investigation.”

 

At last Thursday’s hearing at the Hayward Hall of Justice, the judge blocked Concussion Inc.’s attorney Roy Gordet when he tried to use the concept of “credibility” to underscore the chronological peculiarities and overall lack of independence and seriousness of at least one of the university’s two reviews of the Golden Bears football strength and conditioning program.

Neither of these reviews actually investigated the Agu death in the way that, for example, the University of Maryland last year probed that of football player Jordan McNair. Moreover, the very reason that then-Cal chancellor Nicholas Dirks was forced to order a second review was that the first one was publicly derided as comically thin, and was authored by an athletic department crony doctor at UC Davis whose methods and parameters were shown to have been micro-managed by the administration and the athletic department.

But Brand wouldn’t let Gordet go there. The judge said an evaluation of the quality of reports outside those of the campus police office was beside the point. His use of the word “credibility,” he suggested, applied only toward the existence of another and arguably related public document.

To which I say, in an adaptation of Forrest Gump: “Credible is as credible does.” By invoking the word credibility anywhere near the zip code of the University of California’s actions in the Ted Agu death, Judge Jeffrey S. Brand has imperiled his own.

In subsequent posts, Concussion Inc. will review various other aspects of UC’s bone-dry reservoir of credibility. For present purposes, let’s focus on the June 9, 2014, report by UC Davis’s Dr. Jeffrey Tanji to John Wilton, then Berkeley’s vice chancellor for administration and finance. “Joke” is not too strong a pejorative for this inside-the-country-club exercise in butt-covering (the full text of which we again reproduce below). As a citizen and taxpayer of California, I am embarrassed that my state’s flagship public university produced such shoddy work product and held it up as an exhibit of accountability.

For starters, the very foundation of the report is an inaccurate initial coroner’s finding of Agu’s cause of death. The inaccuracy stemmed from the university’s out-of-the-box concealment from the medical examiner that the stricken student-athlete was a sickle cell trait carrier. (This even though the university acknowledged, in its defense of protecting the campus police binder from public scrutiny, that the responding police officer herself immediately was informed that Agu had a “preexisting medical condition.”)

Tanji writes to Wilton, “The autopsy report from the County Coroner’s Office became public the day I arrived for my interviews confirming the diagnosis of hypertrophic cardiomyopathy (HCM) as the cause of death for Ted Agu.” What a hoot. The next year, during his deposition in the Agu family civil suit, the medical examiner, Dr. Thomas Beaver, would testify that the Cal football team physician, Dr. Casey Batten, had lobbied him for a snap finding of HCM and not disclosed that Agu carried sickle cell trait. The upshot of Beaver’s deposition — in a move county officials called all but unprecedented — was that the cause of death finding was revised.

Much more is very wrong with the Tanji report. Strikingly, there is its brevity, both in the time devoted to the “investigation” (somewhere between one and three days) and in the text of the report (927 words).

Internal emails uncovered by Concussion Inc. in this Public Records Act case also show that the whole operation was run by Ryan Cobb, an associate of then Cal athletic director Sandy Barbour. In his report, Tanji unctuously thanks Cobb for “expert and timely collaboration” and “organizational support.” Tanji notes that Cobb even “randomly selected a panel of student-athletes for the interview process.”

These interviews did not include whistleblower player Joey Mahalic, who linked the Agu death to the criminal assault of Fabiano Hale by teammate J.D. Hinnant three months prior to the Agu death. Mahalic and others maintained that this was a “Code Red” attack instigated by conditioning coach Harrington, and that it illustrated the toxicity of his program.

For our 2016 coverage of the background of the Tanji report, see http://concussioninc.net/?p=11677, http://concussioninc.net/?p=11679, http://concussioninc.net/?p=11689. In an email exchange setting up Tanji’s work, associate athletic director Cobb referred to “the ‘Review,’” in scare quotes. In a lovely touch suggesting that his effort was less than professionally focused, something more like a junket, Tanji asked for Cobb’s assurance that it was OK for his wife to accompany him on his university-booked stay at the Claremont Hotel and Resort.

Today the world is watching college football conditioning’s pandemic of 36 deaths this century in the industry arms race of round-the-calendar-year non-contact, non-game, non-scrimmage extreme workouts. If the Tanji “‘review’” is any kind of good-faith substitute for the suppressed police reports on Agu, and anything like an analogy to the Maryland investigation of McNair, then I am the illegitimate son fathered by Donald Trump at age 8.

Credibility (or as Cal athletics administrator Cobb might have put it, “credibility”) is the heart and soul of journalism. Should Judge Brand’s buttonhole tentative ruling, protecting the University of California-Berkeley from additional scrutiny in the Agu matter, become final, our own journalism will proceed, the hard way.

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

 

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June 9, 2014 Mr. John Wilton Vice Chancellor-Administration and Finance University of California, Berkeley

Dear Mr. Wilton:

Thank you very much for the opportunity to review the University of California, Berkeley Football strength and conditioning program at your request. John Murray, Strength and Conditioning Coach in private practice and I had the pleasure of doing so over a three day site visit. Mr. Murray and I were asked to answer four specific questions and I shall structure my report around these four topics.

I wish to acknowledge the expert and timely collaboration of Associated Athletic Director, Ryan Cobb, whose organizational support was invaluable in preparing this report. Ryan coordinated the meetings with coaches, athletic trainers, team doctor and randomly selected a panel of student-athletes for the interview process. Please note the attachment to this document which clarifies the selection criteria.

In summary, after formal interviews with the strength and conditioning coaching staff, three members of the athletic training staff for football, the head team physician, and over a dozen randomly selected student-athletes this report finds the practices of the strength and conditioning staff to be consistent with health and safety standards in college and university sports programs at the Division I level. The medical monitoring of workouts by the strength staff, athletic training staff and team physician are entirely appropriate with standards at the NCAA Division I level.

The Four Questions

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

The training practices, in particular the intensity of workouts at Cal, are consistent with the protection of student athlete health and safety. Nearly every athlete interviewed appreciated and understood the highly competitive nature of the strength and conditioning program as led by head strength coach Damon Harrington. The athletes, athletic trainers and team physician understood the logic of the training program. Only one athlete clearly preferred the more academic approach and rationale by Coach Harrington’s predecessor, Mike Blasquez. The athlete had prior experience with minor league professional baseball and preferred a less competitive more data driven rationale for conditioning. One observation that John Murray made was that some of the running drills were done on asphalt or concrete, which can be difficult for athletes dealing with ankle and football injuries, or in rehabilitation from injuries to those areas. While a concern for improvement in the program, this did not constitute a major flaw in the program.

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

No, they have not used training inappropriately. It is not unusual to have a team do additional drills for a missed practice, but this was not applied inappropriately in our review.

During the interview process an incident came to light raised by one of the members of the athletic training staff. During the season one member of the football team punched another member of the team in the locker room for not participating in a workout which resulted in the team having to do additional training. While the athlete who punched was suspended — the sentiment was that this athlete “sent a message from the rest of the team” to the athlete who missed the workout. The other athletes not directly involved in the incident felt that this was not encouraged or sanctioned by the strength and conditioning staff, but the action of one athlete to another.

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

While athletes, athletic trainers and team physician note that strength coaches will use profanity during training sessions, no one interviewed felt that the language was focused on an athlete in an abusive fashion, or at the team in an abusive manner.

  1. 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 level of medical monitoring and awareness of student-athlete pre-existing conditions, current injuries and distress are appropriate both in a general sense and in the specific case of Ted Agu, the student-athlete who met an untimely death in February 2014.

In a general sense, the strength coach staff, the athletic trainers and team physician are continuously aware of pre-existing conditions, such as sickle cell trait and ongoing injuries among the student-athletes. Annual pre-participation screen physical exams are done according to NCAA standards. An emergency medical plan is in place with automated electronic defibrillators, coordination with ambulance and EMT personnel in the city and chain of command for coordination of an emergency. In the specific case of Ted Agu, I reviewed the sequence of events as they unfolded with the head football athletic trainer, the graduate assistant athletic trainer, the strength coach and the team physician and there was consistency and uniformity on their description of events. The autopsy report from the County Coroner’s Office became public the day I arrived for my interviews confirming the diagnosis of hypertrophic cardiomyopathy (HCM) as the cause of death for Ted Agu. From the perspective of a sports medicine physician who has practiced for nearly thirty years and has dealt with athletes with HC, thee genetically acquired condition could result in sudden cardiac death at any time, not just as the result of sport participation.

Disclosures

John Murray discloses that he is a friend and colleague to Mike Blasquez, the director of strength and conditioning at Cal. Jeff Tanji discloses that he trained head team physician Casey Batten during his fellowship training. Both of us felt that these relationships did not color the outcome of the requested investigation.

Thank you for your request for information. If you have any questions please do not hesitate to contact me at 916-901-4202.

Sincerely yours,

Jeffrey L. Tanji, MD Associate Medical Director, Sports Medicine UC Davis Health System