UC’s Overreaching California Public Records Act Appeal Only Highlights Its Two-Pronged Cover-Up of Ted Agu’s 2014 Football Conditioning Drill Death

PREVIOUSLY:

“Football’s unknown epidemic: When Black players die suddenly, the cover-up begins,” Salon, November 13, 2021, https://www.salon.com/2021/11/13/footballs-unknown-epidemic-when-black-players-suddenly-the-cover-up-begins/

“Concussion Inc.’s Brief Defending Against the University of California’s Appeal of Our Public Records Act Victory in the Ted Agu Football Conditioning Death Cover-Up Was Filed – Here Are Extended Excerpts,” March 4, https://concussioninc.net/?p=14949

by Irvin Muchnick

Not content with simply seeing their stalling tactics work – to the point where, years later, no major media outlet has yet to pick up on our exposure of the cover-up of the circumstances of Ted Agu’s death in 2014 – the University of California decided to appeal last year’s Superior Court ruling that I was the prevailing party in California Public Records Act litigation. This case spurred release of hundreds of new pages of internal university documents on how it managed the background and aftermath of the fatal Agu football conditioning drill episode.

Attorney John Derrick last week filed Concussion Inc.’s brief in response to UC’s effort at supreme overreach before the 1st District Court of Appeal. Among other things, Derrick pointed out that UC’s bizarre claim that my action had been “frivolous,” and thereby sanctionable, “is itself frivolous.”

“The University does not even try to point to any improper motive on the part of Muchnick,” Derrick wrote. “… If a powerful state institution makes such a meritless demand in a case such as this, it suggests a purpose to chill the right of journalists — and citizens generally — to petition under the CPRA by threatening potentially life-changing consequences for those who dare to not take ‘no’ for an answer.”

And finally: “The University’s unreasonable aggression in this regard is, perhaps, indicative of how it has handled this entire matter and sheds light on why this case has got to this point.”

What still remains is the matter of effective public airing of the underlying narrative. Toward that end, I offer here, again, a breakdown of the two ways in which UC Berkeley’s actions constituted classic cover-up. This is about egregious misconduct by the flagship public university in the country’s most populous state.

• Cal covered up the abusive regime of Damon Harrington, strength and conditioning assistant under head football coach Sonny Dykes.
• For more than two years, Cal willfully covered up the cause of Agu’s death – and even today the covered-up version might be the prevalent public perception. The player did not die of a coronary; he died of an exertional collapse associated with sickle cell trait, or for short, ES (exertional sickling). There is overwhelming contemporaneous evidence that Agu’s status as a carrier of sickle cell trait was known to the medical, training, and coaching staff, yet deliberately withheld from the county coroner and law enforcement authorities. By the time that was rectified, the lawyers for Agu’s devastated and weary Nigerian-American parents were already completing a $4.75 million civil lawsuit settlement. This settled nothing intellectually or morally pertinent.

Let’s review these in order.

*****

On Halloween 2013, a running back named Fabiano Hale skipped a conditioning session for the players on the non-traveling portion of the football squad. Coach Harrington responded by imposing extra punishment drills on those present. Harrington also delivered to the group a speech suggesting that anyone unhappy about what had gone down had the responsibility of holding absent teammates accountable. The coach punctuated his words by banging a fist into his other hand.

J.D. Hinnant, a defensive lineman, seemed to internalize Harrington’s message. The next day, at the Simpson athletic complex, Hinnant jumped Hale and beat him into unconsciousness and the Alta Bates Hospital emergency room. Hale was hospitalized overnight. Meanwhile, as the Berkeley campus police undertook an investigation of the criminal assault, Hinnant suited up for the home game against Arizona. The campus cops appeared to be most concerned with issuing statements asserting that head coach Dykes knew nothing about the incident.

Just days before Ted Agu was killed in Harrington’s February 2014 conditioning drill, the Alameda County district attorney decided to “defer” the criminal case against Hinnant surrounding the November episode. In practical terms, this meant the charges were being expunged in return for the assailant’s evident remorse and agreement to perform ritualistic community service.

After the Agu death, another member of the non-travel squad, quarterback Joey Mahalic, was distraught enough over the toxic culture of Harrington’s program that he tried to blow the whistle on it. Mahalic confided in the football team faculty adviser, who sent him to Solly Fulp, the deputy athletic director. In turn, Fulp sent Mahalic to John Wilton, a senior vice chancellor. Wilton advised Mahalic to talk to the campus police.

Mahalic’s police interview became part of a 141-page binder of Agu death investigative documents that somehow never made it intact to the Alameda County sheriff’s department, which was overseeing the medical examiner’s work on the Agu autopsy, or to the DA.

In spring 2014, Cal commissioned an “independent” review of the football strength and conditioning program. The review was a joke, with the author of the report, athletic department crony Dr. Jeffrey Tanji of UC Davis, spinning a couple of pages about how everything checked out jim-dandy peachy-keen. Internal emails show that before taking on this task, Tanji got assurances that he wouldn’t have to work on it for more than a day and that his wife would be able to join him for an all-expenses-paid overnight at the swanky Claremont Club & Spa. Players were chosen to be interviewed by a random computer mix. J.D. Hinnant, Fabiano Hale’s assailant, was interviewed. Hale was not interviewed. Whistleblower Mahalic was not interviewed.

The Tanji report was so transparently shallow and conflicted that Nicholas Dirks, the campus’s scandal-riven and mercifully short-lived chancellor, was pressured to commission a second review of the football strength and conditioning program. Later and surreptitiously, Dirks changed the charge so that the new reviewers would be instructed to write only forward-looking recommendations, not accounting of past behavior. Review 2.0 took more than two years before its compendium of platitudes was published.

Here’s where I should also alight briefly on the piecemeal “investigations” of the San Francisco Chronicle – the least adequate in-market local newspaper coverage of a college football conditioning death I have encountered in more than 20 years of following this grim subject. I ascribe the Chronicle’s weakness on this story, in part, to its complete ceding by the more knowledgeable sports department to the one-and-done templates of a news department more used to reporting on things like administrators’ salaries and perks. It adds up to a sad comment on the decline of newspapers.

Just before the Agu family lawsuit settlement, the Chron reported that the university was admitting liability. This was useful journalistic shorthand, though anyone familiar with legal settlement language knows that defendants usually do no such thing (and the university didn’t here).

More substantively, the newspaper ran a story about Agu’s death based on deposition lawsuit transcripts that had been acquired for it by the Investigative Reporting Project at Cal’s Graduate School of Journalism. I later got hold of the same transcripts, which showed that the Chron studiously left out the best parts – many of them pointing to the second prong of the cover-up.

*****

Ted Agu suffered an exertional sickling attack. The first response campus police report referenced Agu’s “pre-existing medical condition,” which was that he was a sickle cell trait carrier. The first response emergency medical services report referenced one of the trainers observing signs of rhabdomyolysis – the sickling-associated breakdown of dead muscle tissue into the bloodstream.

University of Oklahoma head athletic trainer Scott Anderson, a critic of football conditioning drill abuses, learned from a source at the Berkeley football complex that the coaches and athletic department staff, that very morning, were talking amongst themselves fearfully about the prospect of a truthful finding of sickling, rather than a generic cardiac episode, as the cause of Agu’s death.

Sharply differing from the testimony of coaches and trainers in their Agu lawsuit depositions, teammates recalled, in their own testimony, his collapses in stages, not a single fatal collapse. That is what happens with exertional sickling, not a heart attack.

The Cal sports information office composed talking points in which officials declined to answer questions about whether Agu had a pre-existing medical condition, on the grounds that they invaded the medical privacy of a dead person. Dr. Casey Batten, the football team physician, parroted this point at a televised press conference.

Yet within hours Batten was also placing an unsolicited call to Dr. Thomas Beaver, the coroner, who was preparing to start work on the Agu autopsy. Batten told Beaver that the cause of death seemed indisputably to be hypertrophic cardiomyopathy (heart disease). Batten didn’t mention that Agu was a sickle cell trait carrier. At minimum, the team doctor’s call was unethical and misleading; at maximum, it was unindicted obstruction of justice.

Following the lawsuit depositions, in which Beaver was confronted with information about sickle cell trait and exertional sickling and gave an unrefuted account of Batten’s call to him, the medical examiner’s office revised its original autopsy report and the university negotiated the settlement.

But the cover-up had been wrought.

And the cover-up had succeeded.