PREVIOUSLY IN THIS SERIES
“‘Newsletter of Intent,’ Covering College Sports Reform, Has New Article About Our Work and Public Records Act Litigation in Cal’s Ted Agu Football Death Cover-Up,” December 3, https://concussioninc.net/?p=14100
“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,” December 5, https://concussioninc.net/?p=14103
“Cal Football Death Cover-Up, Pt. 1: University Kept Salient Details of Player-on-Teammate Criminal Assault Under Wraps — Both Before and After Ted Agu Perished in the Same Conditioning Program,” December 8, https://concussioninc.net/?p=14105
“Cal Football Death Cover-Up, Pt. 2: Team Physician Dr. Casey Batten Lobbied Coroner For Ted Agu Autopsy Finding That Ignored Sickle Cell Trait,” December 11, https://concussioninc.net/?p=14119
“Cal Football Death Cover-Up, Pt. 3: Berkeley Campus Police Helped Conditioning Coach Damon Harrington Give a More Plausible Non-Answer About Ted Agu Sickle Cell Trait ‘Rumors’ — Also Withheld From Sheriff and Coroner Many Pages of Related Documents,” December 12, https://concussioninc.net/?p=14126
by Irvin Muchnick
At the start of an important week in my California Public Records Act case, it’s important to note that the San Francisco Chronicle waited almost two years to publish an article of any length or depth about the 2014 death of Ted Agu.
Under the misleading headline “UC concedes liability in athlete’s death,” January 30, 2016, the newspaper published this single 2,000-word story. It was followed by no editorial page comment, no columnists’ reflections on what had contributed to a pattern of normalized and avoidable loss of life in an offseason college football conditioning program — in this case, at the flagship public university in a market that regards itself as exceptionally sophisticated.
In common layperson’s shorthand, the Chronicle also reflected a supposed admission by the University of California in the upcoming settlement, of what turned out to be a payout of $4.75 million out of public funds, in the Agu family’s wrongful death lawsuit. The errant headline was emblematic of the overall slow, punch-pulling, and sometimes hyped but never serious coverage of the aftermath of Agu.
To be sure, settling a lawsuit can be somewhat tantamount to an acknowledgment of wrongdoing. But this was nothing like, for example, the nearly immediate and extraordinary statement in 2018 by University of Maryland president Wallace Loh that his institution “accepts legal and moral responsibility in the death of football player Jordan McNair.”
Au contraire: At the same time UC Berkeley was making its lawsuit go away, it was inking head coach Sonny Dykes to a multiyear, multimillion-dollar extension. Again, with zero comment by the Chronicle or any other major media outlet. And what about the parallel contract extension of Dykes strength and conditioning assistant Damon Harrington, whose regime of punishment drills was cited as a factor in the Agu death? Dykes told the Chronicle, “Anybody who knows anything about our program sees the positive impact he’s had on our program.”
(Maryland, for its part, dismissed first the conditioning coach and then the head coach, and university president Loh resigned.)
Getting back to what the Agu-UC settlement actually said, here was the document’s standard legalese. Let’s just say that it fell somewhat short of a concession of liability:
“THE REGENTS OF THE UNIVERSITY OF CALIFORNIA (‘THE REGENTS’) deny and dispute PLAINTIFF’S claims and allegations.”
This corrective, in addition to being more than incidental, is worth noting today because the settlement agreement — viewable to Concussion Inc. readers at http://muchnick.net/agusettlement.pdf but never published or quoted by the San Francisco Chronicle — got daylighted as a result of the filing of my Public Records Act petition in Alameda County Superior Court in 2017.
Within the next several days, Judge Jeffrey S. Brand is expected to rule on the latest motion in our more than two and a half years of litigation against UC. This motion challenges the university’s redaction, on a claim of attorney-client privilege, of the full contents of an email by then UC Berkeley deputy athletic director Solly Fulp to his non-lawyer, non-university-affiliated father, Ian Fulp, containing 17 pages of administrators’ and campus cops’ deliberations of public relations talking points in anticipation of the coroner’s Agu autopsy findings.
Before I sued UC, there were two main published accounts of the Agu death: the Chronicle’s and this website’s. Both accounts were working from the same leaked deposition transcripts in the Agu suit. While neither account is completely uncritical of the university, the difference is that the Chronicle cherry-picked those transcripts, drawing anodyne conclusions and committing errors of omission.
The most gaping error of omission in the 2016 Chronicle story anticipating the settlement was the criminal assault by player J.D. Hinnant of teammate Fabiano Hale three months prior to Agu’s death, after Hale skipped one of conditioning coach Harrington’s Friday punishment drills for the non-travel squad. In his deposition, whistleblower student-athlete Joey Mahalic testified as to how the Hinnant-Hale altercation exposed the unsafe culture of Harrington’s program, and how Mahalic raised these concerns with top university officials and even the campus police.
As a bland substitute, the Chronicle quoted another player’s deposition observation that Harrington emphasized a brand of “down South mental toughness” that represented a departure for Cal football.
The conditioning culture was one of two aspects of the Agu wrongful death. The other was the concealment from the coroner of Agu’s status as a carrier of sickle cell trait, which led to a wrong finding of cause of death. Here, unlike with Harrington, the Chronicle at least covered the basic fact of the university’s withholding of this information. But the 2016 article didn’t use the deposition transcripts in the newspaper’s possession in order to tell the full story; instead, the details were left to the reader’s imagination, and the role of one of the central villains was blunted.
By contrast, in Concussion Inc.’s coverage the Cal football team physician, Dr. Casey Batten, was name-checked for having improperly, and probably illegally, lobbied the Alameda County medical examiner, Dr. Thomas Beaver, for a false finding of a coronary episode, instead of an exertional collapse associated with sickle cell trait.
In the Chronicle, Batten was reported as merely forwarding to Beaver information given to the team doctor about the fatal workout by Robbie Jackson, the head athletic trainer. The story equivocated that Batten told Beaver that all of what was known “suggested Agu died of a cardiac problem.”
Conveniently left out of the story was Batten’s verbatim fumbling explanation when he was confronted at his deposition about the conflict between his knowledge of Agu’s sickle cell trait and what was shared with the medical examiner (and in a call curiously initiated by Batten):
“Umm, I don’t recall that I had a conversation where we — I think we did say something along the lines of it appeared to be, but it was — I think it was — it might have been after — I really don’t recall when I spoke with him.”
The Chronicle said it had acquired the Agu lawsuit deposition transcripts from the Center for Investigative Reporting at the UC Berkeley Graduate School of Journalism. Following publication, I emailed the then director of the center, legendary journalist Lowell Bergman, to question why the story emerging from the transcripts was so obviously self-censored. Bergman never defended it. “[W]hile we provided certain information and editorial guidance the reporting and editing was done by a Chronicle writer and editor,” Bergman wrote back. (The story was bylined by Chron reporter Kimberly Veklerov.)
Michael Gray, the newspaper’s investigations and enterprise editor, later offered a “different strokes for different folks” defense.
The Chron, Gray told me, had “presented an accurate account of the pertinent events leading up to and following Ted Agu’s death…. It doesn’t appear that you are suggesting there was any error in the Ted Agu story, just that you believe it did not contain certain information you believe might be pertinent.”
After the settlement between Agu’s parents and the university was announced, Steve Yerrid, attorney for the family, did an exit interview for ESPN’s Outside the Lines. Yerrid reviewed all the outrages that had caused the death of his clients’ 21-year-old son. When asked in the interview whether accountability had been achieved, Yerrid said accountability appropriately should include that of individuals, not just a sum of money to resolve a lawsuit.
Almost four years later, Yerrid is singing a different tune and grading UC on the curve. The university “did the right thing,” he told college sports abuse journalist and commentator Daniel Libit two weeks ago.
Yerrid touted football conditioning program “reforms” installed at Berkeley. But even the San Francisco Chronicle got that piece of institutional manipulation right, although the newspaper, by its sporadic and episodic reports — all credited to “a Chronicle investigation,” of course — did nothing to counteract the slow-walking of the scandal until almost no one was paying attention.
UC Berkeley commissioned two separate “independent reviews” of Cal Bears football strength and conditioning. The first was such a rushed, conflicted, thin joke of a report that the disgraced former chancellor, Nicholas B. Dirks, had to order up a second and more professional one. But after naming the experts for the second report, which wouldn’t be released for more than a year and a half, and while no one was looking, Dirks quietly changed the charge of the investigation to make it a “forward-looking” set of recommendations, rather than a critique of past practices.
And for those of you keeping score:
* Sonny Dykes is now the head football coach at Southern Methodist University. This year Dykes was short-listed for the Football Writers Association of America’s Eddie Robinson Coach of the Year Award.
* Damon Harrington is now the football strength and conditioning assistant coach at Grambling State University.
* Dr. Casey Batten is now team physician for the Los Angeles Rams.
Securing the public interest is not the role of plaintiffs’ lawyers in civil lawsuits. That task belongs to the public. This is one of the reasons why the upcoming ruling in my Public Records Act case is so important.
Comprehensive headline links to our six years of Ted Agu death coverage: https://concussioninc.net/?p=10877