by Irvin Muchnick
In a tentative ruling that Concussion Inc. believes is legally unsound and logically flawed, and that we will continue to contest, Alameda County Superior Court Judge Jeffrey S. Brand this week said he expects to deny our motion under the California Public Records Act to compel the University of California to release 141 pages of Berkeley campus police reports surrounding the 2014 sickle cell trait death of football player Ted Agu during an extreme football team offseason conditioning drill.
Brand’s tentative decision was posted online Tuesday and discussed at a court hearing yesterday. The judge said the respondent UC Regents had met his standard of a public records exemption claim for law enforcement agency files by virtue of stating that the university had a blanket campus police policy of initially treating all campus deaths as potential suspected crimes. The full text can be read at http://muchnick.net/brandtentativeruling141pages.pdf. A final ruling is expected to be issued shortly.
During the hearing, some of which was devoted to the logistics of next steps in the case, my lawyer Roy S. Gordet challenged two aspects of the tentative ruling. The first is what we call its “oxymoronic” nature.
The court, Gordet pointed out, already had held that UC had the burden of showing “a particularized and objective basis for suspecting criminal activity” in order to keep the campus police reports exempt under CPRA Section 6254(f). Yet Brand is leaning toward accepting — “in an echo chamber,” Gordet said — the representation of Berkeley campus police chief Margo Bennett that any campus death, by default, is investigated as a crime.
This representation triggered a sort of legal “get out of CPRA free” card for all documents that are compiled by the campus police office, we argue — even if they were possibly withheld from public view for the purpose of non-transparency rather than for the legitimate purpose of a criminal investigation.
Gordet said the problem here is stark “in light of the fact — as the court itself noted — that the Regents did not demonstrate that the UC Berkeley Police Department had a fact-specific reasonable suspicion of criminal activity when it first learned of Ted Agu’s death. Indeed, the first known fact, as well as the ultimate coroner’s finding, was that Agu perished as a result of a preexisting medical condition.”
That preexisting medical condition was sickle cell trait (SCT).
Moreover, it took more than a year for the Alameda County medical examiner to come to the correct finding of exertional attack associated with sickle cell trait. This was because, in a first-day telephone call of dubious propriety — what might be termed a lobbying initiative — the Cal football team doctor, Casey Batten, withheld from then-coroner Dr. Thomas Beaver that the university knew that Agu carried the trait.
Batten’s irregular phone call to the coroner occurred during the exact same period when, other public documents released during our case establish, the team doctor was working with school and athletic department public relations officials to craft evasive answers to what they knew would be among the very first questions in the wake of the death: whether Agu was, indeed, an SCT carrier. See “NEW TED AGU PAPERS: Background of University of California Team Doctor’s Deception of Coroner in 2014 Football Death Is Revealed in Internal Emails,” September 11, 2018, https://concussioninc.net/?p=13231.
“Taken together, this is an unfortunate distortion of CPRA purpose, policy and law,” Concussion Inc. attorney Gordet said in court yesterday.
Our other big problem with Brand’s justification for his ruling is this: He wrote that he considered “whether the Regents and/or UCB conducted any investigation other than the Department’s investigation. The court considered this issue in the context of evaluating the credibility of the Regents.”
Again, Gordet: “It is not entirely clear to us how or why the court applied this factor to the law. But as to the issue of ‘credibility,’ both generally throughout this case and specifically with respect to this point of any other investigation of the Agu death,” UC has demonstrated “little or no credibility,” Gordet said. The court simply stated “that another report exists, and refrains from addressing the record showing that neither of the two reviews of the football strength and conditioning program actually investigated the death.” Further, “the very reason the second review was commissioned was that the first review got publicly exposed as slipshod and conflict-ridden, requiring a ‘do-over.’”
(For more on the public outcry against the 2014 report by Dr. Jeffrey Tanji of UC Davis, which prompted then-chancellor Nicholas Dirks to commission a second review, see “Critics question Cal’s probe into football coach’s actions,” San Francisco Chronicle, June 30, 2016, https://www.sfchronicle.com/bayarea/article/Critics-question-Cal-s-probe-into-football-8333108.php.)
In our view, the people of California here have not been afforded meaningful accountability for the Agu death incident and the Regents’ payout of $4.75 million in public funds in settlement of the Agu family’s wrongful death lawsuit. But at least so far, Judge Brand does not agree with this view in relation to our attempt to daylight the Berkeley campus police binder.
Immediately below, Concussion Inc. is republishing the text of the table of contents of the secret campus police binder that Judge Brand says cannot be released because it was based on “reasonable suspicion of criminal activity.”
Below this table of contents of the still-secret 141 pages is the full text — barely more than three doubled-spaced typed pages — of the 2014 Cal football strength and conditioning program review that Judge Brand says is an acceptable alternative public investigation of the Ted Agu death, and he weighed in consideration of the university’s “credibility.”
Other issues still loom in the CPRA case.
Complete headline links to our Ted Agu series: https://concussioninc.net/?p=10877
TABLE OF CONTENTS
A Initial UCPD report and supplements
B Supplement autopsy
C Miscellaneous supplements/documents
D Interview with Damon Harrington
E Interview with Michael Jones
F Interview with Austin Hinder
G Interview with Drake Whitehurst
H Interview with Daniel Lasco
I Interview with Joey Mhalic [sic]
J Interview with Michael Jones transcripts
K Interview with Robert Jackson transcripts
L Interview with Drake Whitehurst transcripts
M Interview with Damon Harrington transcripts#1
N Interview with Damon Harrington transcripts#2
O Interview with Austin Hinder
P Final autopsy report by Dr. Beaver
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
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.
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.
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.
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.
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.
Jeffrey L. Tanji, MD Associate Medical Director, Sports Medicine UC Davis Health System