University of California Says There Are ‘No Secret Terms’ in Ted Agu Football Wrongful Death Lawsuit Settlement — But Difficult Questions Persist in the End Game

by Irvin Muchnick

Some time soon, possibly right after an early April court hearing, the major news media will pick up on something Concussion Inc. has been telling you about for a while: the big-bucks settlement by which the University of California-Berkeley will wash its hands of what was something very close to the clinically criminal death of Ted Agu, a 21-year-old football player, during a February 2014 conditioning drill.

So, what’s the going rate these days on a croaked walk-on pre-med Division I college football player?

I am guessing north of $10 million — but as I’ll proceed to explain, I could be off by a little or even a lot.

That’s because $10 million is what a jury awarded the family of University of Central Florida football player Ereck Plancher, who died in 2008 under similar circumstances: known sickle cell trait, “voluntary” offseason workout, with a supervising staff that also included — just for a further sick twist — now-departed Cal athletic trainer Robert Jackson. But Cal shrewdly did not allow this case to go before a jury. In the process, my examination of available public court records suggests, the university’s crack “risk management” team might have saved the institution several mil.

Whether all this works out as a good deal for the taxpayers of California — millions for a football death, millions more for the lawyers and actuarial experts who help adjudicate it — is another question entirely.

Regardless, I am confident that the San Francisco Chronicle, fed by the public relations consultant for California tort king Brian Panish, who represents the Agu family, will hype what a powerful message this settlement sends — even as head coach Sonny Dykes continues on a bulked-up contract extension he maneuvered after winning a few games for a change, behind a quarterback who likely will become a first-round pick in the National Football League draft.

I am equally confident that the Chronicle will continue not to tell the full story of Damon Harrington, the Cal strength and conditioning coach with a known pattern of maniacal methods, who drove Ted Agu to his death. Also missing — and part of our story here today — will be the legal gymnastics by which Cal kept the shame-proof Dykes from having to testify.

(Panish and his Florida-based co-counsel, Steven Yerrid, did not respond to requests for comment on this story, and have not returned any of numerous messages from Concussion Inc. over a period of months. Anyone who wants to opine that I carry water for plaintiffs’ attorneys can stuff it.)

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As other outlets reported in late January, the university short-circuited a looming trial date with an admission of liability. This showed, first, that Cal had the good sense to quit while they were behind. It also set the stage for final wrangling over “economic” and “non-economic” settlement terms.

University lawyers argued that the liability concession eliminated the need for discussion of damages — which would have included evidence of extraordinary negligence or aggravating circumstances. The only things left to talk about, by this construct, were items such as Agu’s life expectancy and lifetime earnings, in the alternative universe in which his time on this planet would not have been cut so rudely short.

On March 7, Cal asked Alameda County Superior Court Judge Sandra K. Bean for a protective order “prohibiting liability experts from testifying at trial.” The testimony of a $600-an-hour “expert in exercise physiology, sports science, and athletic training,” regarding “decedent’s ‘struggles during football training,'” would be irrelevant. So would the testimony of a $400-an-hour “expert in internal medicine and hematology,” on “issues pertaining to liability and causation, including but not limited to, decedent Ted Agu’s sickle cell trait not being a disease, normal life expectancy for decedent Ted Agu, and the negligence of Defendants.”

The dropping of this motion four days later meant that settlement negotiations were down to brass tacks.

Earlier, by similar reasoning, Cal had blocked the deposing of head coach Dykes regarding, among other matters, the employment of both athletic trainer Jackson and conditioning coach Harrington. (The latter was not even interviewed by the university — indeed, was just dragged along with Dykes when the boss took his act from Louisiana Tech to Berkeley.)

Let’s stop for a second and think about the contempt for human life — the brazen abdication of responsibility in the larger moral sense — represented by Dykes’ failure to testify. In Japan, the chief executives of airlines whose planes crashed are known to visit the families of victims and literally bow down at their feet in contrition. In American football 2016, the head coach whose program killed a kid hides behind the lawyers, lest his program be harmed.

In the 1975 movie Rollerball, James Caan’s fellow players were simply rolled off the rink as they perished, and the games played on. Rollerball no longer is a dystopian fantasy. It is a documentary.

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Yesterday University of California-Berkeley spokesman Dan Mogulof, responding to an inquiry about release of the settlement agreement, told us, “There are no secret terms.” In light of the lack of transparency of the plaintiffs’ attorneys, and the lapdogs-masquerading-as-tough-guys local media coverage, I’m not so sure about that. At this point, I don’t even know when we’ll be in a position to try definitively answering that question.

According to Judge Bean’s case management order earlier this week, “Matter has settled. Continued for dismissal.”

Yet a “Compliance Hearing” is set for August 2. It’s not clear whether Bean realizes how comical she sounds with a hearing title that echoes the dreaded oversight arm of the National Collegiate Athletic Association. As to what the parties need to be “complying” with, other than the exchange of bank account numbers for electronic funds transfers, is not spelled out.

My guess is that the court is retaining jurisdiction to ensure that Cal follows through on “reforms” of its football conditioning policies and practices. Reform No. 1: There will be no more killing of players. Though, of course, you know, accidents do happen.

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