by Irvin Muchnick
In a 2015 deposition, the former University of California deputy director of athletics and chief operating officer, Solly Fulp, talked expansively about what he did in that role. Fulp was deposed in the lawsuit against the UC Regents by the family of Ted Agu, the football player who had died the year before from an exertional collapse associated with sickle cell trait during a brutal offseason conditioning drill run by Damon Harrington, the strength and conditioning assistant under then head coach Sonny Dykes. The Agus would settle with the university for $4.75 million.
Last month, in a San Francisco court reporter’s office, Fulp was deposed again — this time in my California Public Records Act lawsuit against the university for more internal documents related to the Agu death and to what I interpret as cover-ups surrounding it.
But this time Fulp’s memory wasn’t quite as good.
Fulp’s testimony is important because the issue currently before Alameda County Superior Court Judge Jeffrey S. Brand is whether UC improperly invoked attorney-client privilege in trying to protect from public release an email message in which Fulp leaked to his retired father, Ian Fulp, who had no job or affiliation with the university, a 17-page back-and-forth chain of messages among Cal executives, campus cops, and the head football team physician, Dr. Casey Batten. In the package Fulp sent to the outsider, the officials appear to be refining public talking points in anticipation of the imminent release of the coroner’s Agu autopsy findings.
Last week my attorney Roy S. Gordet briefed the court on our perspective on the non-applicability of the attorney-client privilege claim. A hearing is scheduled for December 5. Our opening brief is discussed and reproduced in full (along with my and Gordet’s supporting declarations) at https://concussioninc.net/?p=14045. The almost completely redacted Solly Fulp-to-”Dad” email is viewable at http://muchnick.net/sollyfulptodad.pdf.
In addition, Concussion Inc. has obtained the transcript of the 2015 deposition. The transcripts of both the 2015 and the new Fulp depositions were uploaded to, respectively, http://muchnick.net/fulp2015deposition.pdf and http://muchnick.net/fulp2019deposition.pdf.
Under questioning by the Agu family lawyer in 2015, Fulp talked about the specifics of his job in these passages:
* “So I was a sports supervisor for football, baseball and also oversaw our ticket operations. Uhm, all business and fundraising aspects of 30-sport program, mostly focused on revenue generation.” (page 8)
* “Sports supervision for football was primarily based on evaluation of the coaches from — from their conduct on the field to off the field. How they operated the football program, conduct to student athletes on and off the field, uhm, operations, budget, recruiting, all the aspects that go into a football program.” (page 8)
* “I approved the hiring of Damon Harrington with Sandy Barber [Sandy Barbour, former athletic director].” (page 9)
* [Q. “… who were you the boss of?”] “Sonny Dykes, head coach for the football program [and others].” (page 10)
* “[Damon Harrington and I] met about an incident related to punishment of the football team…. [Q. “Was that the Fabiano Hale, J.D. Hinnant incident?] That’s right….” (page 11)
* “I did talk to a student that was at that [alleged punishment drill incident] — Joey Mahalic.” (pages 12-13)
* “I walked through with Coach what had happened [in the alleged punishment drill incident]. I asked him. Sonny Dykes recounted the incident for me.” (page 18)
* [Q. “Did you talk about punishment drills in general with Coach Harrington?”] “I asked him to recount it for me, and then I expressed my concerns …” (page 23)
* [Q. “Did you discuss that meeting with Sandy Barbour?”] “I did.” (page 24)
* [Q. “Did you ever discuss Damon Harrington or the strength and conditioning program with [vice chancellor] John Wilton?”] “I did.” (page 27)
* “Ryan [Cobb, associate athletic director] and I were the ones who told the team up at the stadium that Ted has passed.” (page 38)
* [“Q. Did you have any discussions with UCPD [campus police] about Ted’s death?”] “I did…. Marc [DeCoulode] was my contact.” (page 40)
* “I asked Ryan and Dr. Batten to recap with me specifically what had happened [when Agu died].” (page 45)
* “Based on the conversations with Joey and the conversation that we had with John Wilton and Sandy Barbour, the decision was made to have a third party review.” (page 56)
And at page 61, Fulp testifies that he gave his consent to have his computer examined by an Internet technology professional for emails related to the topics of his deposition.
Now, here are some — not all — of the questions in our recent deposition to which Fulp answered “I cannot recall” or a variant:
* “Did you have any conversations directly with Marc DeCoulode, concerning the Agu case?”
* “What was Ryan Cobb’s title?”
* “Did you have any [other] communications with others involved in this entire email thread [related to the Ted Agu case?”
* “Would it be accurate to say that [when you were executive director of university partnerships] you were responsible for leading university strategy for campus-wide business partnerships?”
* “Have you seen this document before [his contract as deputy director of athletics and chief operating officer]?”
* “Did you negotiate this contract in any way?”
* “Did you work on any tasks that were connected to the Ted Agu incident and its aftermath?”
* “Before you signed [your] contract, did you read it?”
* “As deputy director of athletics, did you have primary responsibility for entering into contracts with outside companies on licenses related to University of California Berkeley?”
* “Did you talk to Faculty Adviser [Bob] Jacobsen about your conversation with Joey Mahalic?”
The entirety of the October 3 transcript makes It hard to imagine a substantive question attorney Gordet might have asked that wouldn’t have been met by Fulp with “I cannot recall.” Whether Haas Pavilion is located on Bancroft Way, perhaps, or if the rules of football allow only 11 players at a time to be on the field.
Comprehensive headline links to our nearly six years of Ted Agu death coverage: https://concussioninc.net/?p=10877