What Do I Mean By the ‘Cover-Up’ in the 2014 Death of University of California Football’s Ted Agu? As We Approach a Key Public Records Act Hearing on Sweeping Secrecy Claims, Let’s Count the Ways

by Irvin Muchnick

Earlier this week Dan Mogulof, spokesperson for University of California-Berkeley chancellor Carol Christ, told the college sports reform outlet Newsletter of Intent that the institution’s resistance in my current state Public Records Act court motion “has nothing to do with the actual contents of the email string in question. Our opposition is based on an important matter of principle: defending the inviolable nature of attorney-client privilege.”

Of course, the courts didn’t find claims of attorney-client privilege to be so inviolable when it came to the machinations of President Trump’s fixer, Michael Cohen, who is now in prison. On or just before December 20, we should be finding out whether or not Alameda County Superior Court Judge Jeffrey S. Brand agrees that a 2014 email from then Cal Athletics deputy director and chief operating officer Solly Fulp, to his retired father Ian Fulp — containing a long internal discussion massaging public talking points on the death two months earlier of football player Ted Agu — is so sacrosanct.

My own view: Judge Brand would be rendering public information law impotent if he were to rule in favor of the university. Whether Solly Fulp was actually strategizing with Dad or just bragging to him about what he did at work that day, his email was conscious and purposeful. It spilled the beans to a resident of Alaska with no connection to UC or its decision-makers. Now the 40 million citizens of California deserve the same level of access to the deliberations of their flagship public university about, among other things, the background of the shelling out of $4.75 million in public funds to make a wrongful death lawsuit go away.

While we wait again for the wheels of the justice system to turn, I’d like to boil down Concussion Inc.’s six years of coverage of the Agu death into what I hope is a digestible form. What, you may be asking, are the elements of what I label a cover-up? This item introduces a new series of articles answering this question.

Over the next days we’ll tackle in depth and re-document the following points:

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* I’ve been covering the Ted Agu death since three months before there was a Ted Agu death.

In November 2013, Golden Bears player J.D. Hinnant jumped and criminally beat into unconsciousness and the emergency room a teammate, Fabiano Hale, for Hale’s having skipped a conditioning session the day before. Hinnant had been incited by the maniac strength and conditioning coach, Damon Harrington, whose bizarre and extreme offseason drill would proceed to kill Agu, a known carrier of sickle cell trait.

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* The whistleblower was silenced.

After Agu perished, conscience-stricken backup quarterback Joey Mahalic told first the football team faculty adviser, then deputy AD Fulp, then a senior vice chancellor, and finally the campus police that the death was connected to the conditioning program culture, as illustrated by Hinnant’s Harrington-induced violent crime against Hale.

Nothing was done. Mahalic wasn’t even interviewed in the slapdash, whitewash “independent review” co-authored that spring by two athletic department cronies. Even though Mahalic’s information reached the campus police during the pendency of Hinnant’s “deferred” prosecution (during which he accepted campus discipline and performed community service), it was never forwarded to the Alameda County district attorney. Two years later, when I queried the DA’s office (and with the Hinnant assault short of statute of limitations expiration), the response was, in effect, “That’s ancient history.”

(Another ex-Cal player, Trey Cheek, echoed whistleblower Mahalic in an interview last year for HBO’s Real Sports, examining how the Agu death fits into the narrative of the approximately two-a-year death toll in college football non-contact conditioning.)

The California Public Records Act is all about exposing ancient history.

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* The Cal football team physician and a campus cop — either in autonomous acts of malfeasance or in institutional conspiracy — covered up the cause of Agu’s death long enough for the media to lose interest and for the lawyers to work through the family’s inevitable multimillion-dollar civil lawsuit settlement.

Documents grudgingly released by the university after I filed suit under the Public Records Act in 2017 show that Dr. Casey Batten — now with the National Football League’s Los Angeles Rams — was in the loop of officials who coordinated talking points from almost the instant Agu was pronounced dead. The very first “frequently asked question” on their cheat sheet was whether Agu was a sickle cell trait carrier; Batten went on, at a press conference that day, to parrot the canned response that Cal couldn’t talk about the deceased student-athlete’s medical condition because this would violate “privacy.”

At the very same time, we now know, Batten was lobbying Dr. Thomas Beaver, the county coroner, to rule that the death had been caused by simple heart failure — while withholding Agu’s known sickle cell status, as well as the published medical literature on exertional collapse associated with sickle cell trait (ECAST). Only after Beaver was confronted with these facts, at his deposition in the Agu family lawsuit, did the medical examiner acknowledge that the initial autopsy findings were inadequate, and take the extraordinary step of revising them. But it was another tree falling in the forest with no one there to hear it.

Meanwhile, the campus cops — whose 141-page binder of secret reports in the wake of the Agu death has been allowed to remain secret in my court case (though I have independently acquired and published some of the contents) — did their part. The first page of the first report by the first responder to the stricken Agu noted his “pre-existing medical condition.” Days later, Lieutenant Marc DeCoulode called Harrington back to the police station for a clarifying second interview, hours after the first one. In the second interview, DeCoulode and another cop coached the coach toward a less actionable, but still obfuscating, answer to the question of Agu’s pre-existing medical condition.

One more thing: The documents revealing Batten’s and DeCoulode’s intimacy with high-level executives’ discussions of the handling of the Agu death show that my Public Records Act case has produced results — even if Judge Brand should happen to issue another bad ruling on this newest motion by my lawyer Roy Gordet.

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* The San Francisco Chronicle went along for the ride, “burying the lede” in its only substantial story on the Agu death incident, in early 2016.

The Chronicle’s article featured the UC Regents’ acknowledgment of liability, signaling the imminent settlement of the Agu family lawsuit. The basis of the liability as explained in the story, however, was misleading. The crucial sickle cell trait cover-up went unreported.

I believe it is a fair interpretation that the newspaper had been leaked the very same set of deposition transcripts that I also soon acquired, and consciously chose to ignore both the whistleblower’s information and the evidence of malfeasance in the concealment of Agu’s cause of death.

No, the Chron didn’t aggressively engage in classic cover-up; it just didn’t do its job. The New York Times wasn’t covering up the failures of the Vietnam War, either, circa 1965. But the Times didn’t have its hands on the Pentagon Papers until 1971. The Chronicle had the equivalent of the Pentagon Papers in the Agu scenario and made a decision to soft-pedal its coverage.

Generally, the mainstream media do much more to deflect and equivocate King Football’s subsidized assault on public health than to illuminate it. I like to joke, darkly, that this is either because football is not important enough or because it’s too important — I forget which.

Comprehensive headline links to our six years of Ted Agu death coverage: https://concussioninc.net/?p=10877