Work on UC Berkeley’s ‘Review’ Following Death of Football Player Ted Agu Took All of One Day And Was Directed by University Lawyer and Athletic Department, Internal Emails Reveal

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

A review of the strength and conditioning program of Damon Harrington, Cal football coach Sonny Dykes’ assistant, in the aftermath of the death of player Ted Agu in February 2014, was choreographed almost in its entirety by the University of California-Berkeley’s chief campus counsel and an associate director of the athletic department.

The co-author of the review, UC Davis Medical Center sports medicine specialist Dr. Jeffrey Tanji, was so disengaged from the details of his commission that his main focus seemed to be on ensuring that the investigation could be wrapped up in a single day. Emails among Tanji and other UC officials involved with the review show that he had to be reminded repeatedly of such basics as an interview of Coach Dykes, and appeared most vitally concerned with such matters as parking hassles at the Claremont Hotel and Resort, where he stayed for the day.

These are the main findings from 46 pages of internal documents — all emails — released by the university yesterday to Concussion Inc. under the California Public Records Act (CPRA). Our requests for documents dated back eight months. A complete chronological summary of the emails is further down in this story.

The documents expose far more than the mere fact that the review was not independent, since Tanji and his report co-author, San Francisco athletic trainer John Murray, had long and close ties with Cal athletics. Tanji’s obvious and blatant conflict was the focus of faculty criticism this past summer. It led Cal’s lame-duck chancellor, Nicholas Dirks, to promise a do-over review by other experts in early 2017 — though it does not appear to be one promising much more independence or seriousness of scope.

What the Cal emails also expose, starkly and stunningly, is that Christopher M. Patti, the chief campus counsel, in coordination with Ryan Cobb, an associate athletics director, exerted control over the Tanji-Murray review at every step — all the way down to such details as the numbers and categories of football-connected parties they would interview, and the speed with which the reviewers were being urged to issue their report under pressure from the football program.

In one email from Cobb to Sandy Barbour, then the Cal athletics director (and now AD at Penn State), the work of the outside consultants is even called a “review” — in Cobb’s own scare quotes.

The cover note of yesterday’s document production, from Cal’s PRA coordinator Liane Ko, declared the matter “closed.” But this reporter has noted to university officials, including UC system president Janet Napolitano, that major defects remain, and unless cured will be the basis of a CPRA lawsuit in state court.

On initial review, two major categories of deficiencies emerge. One is that yesterday’s release did not include important documents referenced in the emails. Two key ones are the charge for the review, by then-vice chancellor John Wilton, and another document entitled “scope of work.” What remains to be confirmed is how explicitly Wilton spelled out that Tanji and Murray were being instructed not to investigate conditioning coach Harrington’s roles in the death of Ted Agu or in the player-on-player criminal beating, three months earlier, of Fabiano Hale by J.D. Hinnant.

Indeed, Agu is nowhere named in the emails acquired. Hale and Hinnant do not come up, either, except in emails two years after the report, when UC officials were conferring on how to handle Concussion Inc.’s request to interview Tanji.

What makes this lapse suspicious is that it is now well-documented that Wilton, a top aide of Chancellor Dirks, ordered the review only after another player, Joey Mahalic, complained to Berkeley campus police about Harrington’s coaching methods during the investigation of Agu’s death. Mahalic’s whistleblower police statement was acquired and published in full by Concussion Inc. three months ago. See https://concussioninc.net/?p=11379, https://concussioninc.net/?p=11381, and https://concussioninc.net/?p=11384.

(Claiming exemptions of law enforcement records under CPRA, Cal had refused to release the Mahalic statement. Litigation for additional public records also could seek other emails and documents surrounding university officials’ consideration of the whistleblower crisis.)

Also not released yesterday was review co-author Murray’s contract. Tanji was not compensated for his work. However, one email suggests that Murray was paid $150 an hour plus per diem expenses. Murray’s total billings are not known.

The other category of documents not in yesterday’s release by the university is those of deliberations by campus officials prior to the commissioning of the review. How did Wilton and others decide on their course of action, and how did they come to choose Tanji and Murray? Again: Agu’s death was on February 7, 2014. The family would file a wrongful-death lawsuit in Alameda County Superior Court six months later.

In one email, there is discussion of Tanji’s meeting socially with football head team physician Dr. Casey Batten at a medical convention in New Orleans before the review work began. (Batten is now chief primary care physician for the Los Angeles Rams of the National Football League.)

As part of her assertion that the public records request is closed, Cal compliance coordinator Ko said unreleased documents were exempted as either personnel matters or content protected by attorney-client privilege. But in prospective litigation, the defendant public agency typically would be required to index all withheld documents, and record and justify specific claims of exemption.

Today’s revelations add to the mountain of evidence that Cal was engaged in a classic cover-up prior to this year’s $4.75 million settlement with the Agu family. The cover-up included Dr. Batten’s withholding from the Alameda County medical examiner knowledge of Agu’s sickle cell trait condition. Additionally, the university withheld from county sheriff’s detectives, who were gathering material for the medical examiner’s findings, more than 100 pages of materials on aspects of the Agu death incident, which occurred in the early morning hours on a campus hillside during a bizarre conditioning-punishment competition, designed and directed by Harrington.

The new documents also further underscore how the passive coverage of Agu’s death by the San Francisco Chronicle has done little to inform the public about the magnitude of this scandal. The Chronicle’s original partner — in a front-page story selectively quoting from leaked deposition transcripts in the Agu family lawsuit — was the Investigative Reporting Program at the Berkeley campus Graduate School of Journalism.

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TIMELINE

March 31, 2014

Christopher M. Patti, chief campus counsel, sends Dr. Jeffrey Tanji the formal charging letter from vice chancellor John Wilton.

April 1, 2014

Tanji tells John Murray and associate athletics director Ryan Cobb: “I propose to interview appropriate members of the students, coaches, ATCs, and team physicians during a one day period of time…. [I want] to be very respectful of all of our time and handle this in the most efficient way possible.”

Cobb drafts “a quick itinerary” for the day, and promises to work on the logistics of booking interview rooms at the Simpson Center for Student-Athlete High Performance and “Refining the list of who will be interviewed, with those you have identified and filling the others (in consult with Sandy [athletics director Barbour], UC Administration.”

Tanji declines a per diem during this “professional courtesy for my colleagues.” He adds that, at his own expense, “[redacted]” and he “will make hotel reservations — she already has a place in mind.”

April 9, 2014

Cobb tells Murray that Chris Patti asked to “follow up with you to find a time to speak.” It is not clear whether Murray was to speak with Cobb or with Patti,

Cobb emails Sandy Barbour:

“I spoke with Solly [Fulp, deputy AD] today, and he said he was meeting with you on Wednesday and wanted more of an update on the ‘review’ because he is getting more questions from football. I told him what I knew, and suggested he talk to you, as I am not sure what we are saying to others, and who you want to include.

As an update, Chris Patti and I spoke on Monday and ironed out that he was OK with me calling John Murray (the S&C expert) directly.

Dr. Tanji is set to go (for being on campus on 4/23 and 4/24), and Solly is going to think further about which football players to include. Between Dr. Tanji and Jeff Murray, we are thinking 3-8 total FB players. I have some rooms reserved already, and have mailed parking, etc…bottom line I will see to all the details.

Otherwise, I am working to secure the consultant paperwork with John, thought he has been tough to reach. I am hoping to talk to him tomorrow, and if not, Dr. Tanji will be reaching out to him. I have briefed both Caroline and Kelly that this business consultant agreement is happening, and they are ready to assist.

I know there have been delays, but they have not really been on our part. I understand the anxiety, and no one wants this completed more than you and me, but I also understand the questions/concerns from FB, and others. Dr. Tanji was out of town this week, and he can’t be on campus until the week of 4/23, so that just is how it goes.

I will continue to brief Mike and Damon with timing updates, and will assume you and Solly will be briefing Sonny, unless I hear otherwise.

Let me know if there is more of an update needed from me.[…]”

April 15, 2014

Cobb to Tanji:

“A few things to think on.

1. We have a push from Athletics to include more student athletes. What do you think about each of you seeing 8 of them, 20 minutes each, for a total of 16 over 4 total hours?[…]

2. There has been a question about how to identify which student athletes to speak to. What do you think about the administration selection 4-6, and having the computer randomly select the others, so we get a few that we know have comments, and others just randomly?

3. Coach Dykes, our Head Football Coach, wanted to address the team again on this review. He said that he and Sandy had announced to the team that this process would occur, and wanted to follow up to let them know it was coming. I told him I thought this was appropriate, and that just reminding them that if they are asked, and are OK with talking to our outside reviewers, they should assume it is as confidential as possible, and just be honest. I think that is safe advise [sic], yes?

Sorry, we just want to be sure we include you in all these decisions, so we can reflect in any report that we had your input and knew what processes were in play.”

April 17, 2014

Tanji tells Cobb, “Feel free to schedule me with students and staff at your discretion.” Tanji asks to be picked up at the Claremont Hotel so he doesn’t “have to worry about parking or parking passes.”

Cobb confirms that he’ll have Tanji picked up, and also urges Tanji to coordinate with Murray: “John wanted to connect with you on questions and scope.”

Cobb tells Murray, “For the business office to complete the consultant agreement, they have to have a ‘scope of work’ document…. I have drawn up a draft.”

May 2, 2014

Cobb corresponds with Tanji and Murray, sends latter his consulting agreement, notes that Coach Dykes wanted to meet with one or both of them.

May 5, 2014

Murray returns signed contract.

May 7, 2014

Cobb tells Tanji “I am happy to report that John ran a tight ship, and completed all interviews yesterday…. I am going to update Chris Patti [and tell him] that you and John are going to connect from here.” Cobb reminds Tanji, “Coach Sonny Dykes wanted to talk to one of you.”

May 23, 2014

Cobb checks with Tanji on progress. Tanji says “I will have this done in less than a week…. In summary, it will be a positive report on the status of the strength and conditioning program. John and I will review drafts of my report before we submit it to you.”

Cobb reminds Tanji that he still hasn’t spoken to Coach Dykes, who “was interested in talking,” Tanji: “I completely forgot!” Cobb schedules a phone interview with Dykes the next week.

June 5, 2014

Tanji sends Cobb a draft of the report, and asks for “review for accuracy and precision.”

After appearing to loop in Patti on the reply (that portion is redacted), Cobb approves. Cobb asks, “When do you anticipate forwarding the report to VC Wilton?”

June 6, 2014

Cobb reiterates that he wants to be able to tell “Sandy [Barbour, athletic director] the report has been submitted to VC Wilton and Chris Patti.”

June 10, 2014

Tanji submits the report to Cobb. Cobb asks Tanji if he should forward it to Patti and Wilton. Tanji says yes.

April 28, 2016

Tanji asks Cobb and Patti for guidance on how to handle an interview request from Concussion Inc. that was fielded by Karen Finney, a UC Davis Health System media relations person. Patti’s response to Tanji is redacted.

April 29, 2016

Wesley Mallette, Cal athletics director of strategic communications, has an email thread with Patti, Cobb, Oakland attorney Matt Conant (who defended the UC regents in the Agu family suit), Berkeley campus media spokesperson Dan Mogulof, and athletics director Michael Williams.

“I’m sure you are familiar,” Mallette writes, “but [Muchnick] is a blogger who is writing ‘The Agu Papers’ and emailing multiple people within the department asking for comment on old situations (Hinnant-Hale) and what the discipline was for Damon Harrington, and quite frankly is going after Damon and Sonny.[…] I just want to make sure we are in lockstep. If it is not him requesting this, then wondering if he should be informed of the findings of the review of the program. Although this may send him spiraling in yet another direction.” (Italics in original.)

Finney of UC Davis has an exchange with Mallette and Cobb extending well into Friday evening. Cobb tells Finney that he and Mallette “are consulting with legal and are hoping to hold off [until next week].”

Finney thanks Cobb and Mallette for a phone conversation “walking me through your concerns about Mr. Muchnick. We share your concerns as well. We would, however, like to respond to his question about Dr. Tanji’s compensation.” Finney proposes giving Concussion Inc. this statement: “Dr. Tanji received no compensation for his review of the UC Berkeley strength and conditioning program, and there is no conflict of interest in a faculty member at one campus of the University of California assisting another campus in this way.” (This statement would be included in Concussion Inc.’s contemporaneous coverage.)

Cobb at first agrees that the statement is a good response, but more than an hour later he writes back, telling Finney “I’m actually re-thinking this for a moment.” Cobb suggests that Finney, instead, no-comment, on the grounds that my inquiry concerned a personnel matter. But the previously drafted statement had already been delivered.

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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