Our California Public Records Act Case For University of California Material in the 2014 Ted Agu Football Death Cover-Up Is Mired in Court Confusion

by Irvin Muchnick

As this article was being published, Concussion Inc. still had not received further information from the Alameda County Superior Court on Judge Jeffrey S. Brand’s January 15 “tentative ruling” that the University of California would not be forced to release to us the 141-page binder of Berkeley campus police reports in the 2014 death of Golden Bears football player Ted Agu from an exertional collapse associated with sickle cell trait during a bizarre winter conditioning drill.

However, the online docket of the court now shows an entry, dated February 26 and with no elaboration: “Motion Denied.” This was not posted as early as February 26, according to my own daily checks of the docket.

Why the court would be publishing such a cryptic nugget without transmitting to the parties confirmation of a final decision is mysterious — though, I must say, no more egregious than such a final ruling itself would be.

These are busy days at Concussion Inc.: We just published an ebook on the seemingly imminent federal bust of fugitive former Irish Olympic swim coach George Gibney. And our coverage of the outrageous football conditioning death of Braeden Bradforth last year at Garden City Community College in Kansas has exploded into a national news story. But the third major area of our current work — the Agu cover-up at Cal — is stuck in the mud, thanks to the court ruling’s bad timing and bad merits.

Have no fear that there is life in this case, regardless of how this ruling and its communications shake out. The Agu family recovered $4.75 million from UC in a wrongful death lawsuit settled in 2016. My Public Records Act litigation is approaching the two-year mark.

What makes the now seven-week gap since the tentative ruling doubly perplexing is that Judge Brand had expressed sympathy for our position that time was of the essence in resolving the matter of the police binder. Aspects of the Agu death have been explicitly linked to the negligent exertional heat stroke death last year of University of Maryland football player Jordan McNair, and there is urgency in supporting the national public discussion of the pandemic of deaths in college football conditioning. Brand himself has acknowledged that the public records principles of our case have a practical shelf life in terms of garnering necessary real-time interest, and he went to pains to schedule briefing and hearing of the dispute over the police files for before last Thanksgiving. Further, he warned UC that delay tactics on their part would invite sanctions.

For whatever reason, we are now where we are — ground to a screeching halt pending court clarification.

Once again, I strongly contend that the tentative ruling was wrong, on bases of both logic and public information law and the public interest. I wrote as much on January 18: “Superior Court Judge Jeffrey S. Brand Signals Denial of Concussion Inc.’s Motion to Force Release of University of California-Berkeley’s 141 Pages of Secret Campus Police Reports in 2014 Ted Agu Football Conditioning Death,” https://concussioninc.net/?p=13565. And again on January 21: “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,” https://concussioninc.net/?p=13569.

Below this article, once more, we reproduce the known table of contents of the police binder — followed by the full text of the downright laughably thin, inadequate, and manifestly conflicted 2014 “independent review” of the Cal football strength and conditioning program, which the court cited as “credibility” cover for the university’s continued justification for hiding the police reports.

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

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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

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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.

2. 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.

3. 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.

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 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