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Updated: SFU lawyer defends school's decision to end its Red Leafs football program

The B.C. Supreme Court heard Monday how the university took "significant steps" to mitigate impact on players, according to SFU's lawyer
SFU communicated to players on April 4, 2023 its decision to end its football program | Rob Kruyt

Simon Fraser University (SFU) took “significant steps” to reduce the harm to Red Leafs football players when their team was shut down almost a month ago, a lawyer for the university told a B.C. Supreme Court judge on Monday.

Emily Kirkpatrick put the university’s side before Justice Michael Stephens in a hearing triggered by five players who want the decision reversed so they can play at least one more season in the NCAA Division II’s Lone Star Conference.

If SFU won’t let the team play there or join another league, the players want compensation for breach of contract.

The judge has decided to reserve judgment on whether to order SFU to reinstate the football team and play the 2023 season.

Kirkpatrick said it was “deeply unfair” that the players’ lawyer, Peter Gall, suggested SFU is treating players “as disposable or with contempt for their situation.”

“That could not be further from the truth,” Kirkpatrick told the court.

She said the university tried to keep the team going until it decided in late March to end the program. Since then, it has taken steps to reduce the harm to the players, she said.

Kirkpatrick said players signed financial aid or student athlete agreements, but SFU was not bound by any written contract to provide a football team for as long as they were students at Burnaby Mountain.

“There's no evidence that they had that conversation that they said, you'll get into SFU, and we'll never take it away from them. There's no evidence of that conversation,” Kirkpatrick said. “What the plaintiffs affidavits do recount are conversations about an opportunity to play in the SFU program.”

She also said that SFU doesn’t have full control over the football program because it is beholden to others, such as the league. Players were free to leave at any time and coaches were free to leave on two weeks’ notice.

Kirkpatrick said SFU has not filed its response to the players’ April 13 civil claim, but did quote from an affidavit sworn by athletic director Theresa Hanson. Kirkpatrick outlined the steps the university took since Jan. 25, when the Lone Star Conference informed SFU that it would not be welcome in 2024. The conference cited the cost of travel to SFU, SFU’s lack of competitiveness (an 18-103 win-loss record since joining NCAA in 2010) and that another university wanted to join.

SFU, Central Washington and Western Oregon joined the mainly Texas conference for 2022 after the Great Northwest Athletic Conference ended football. The Red Leafs recorded just one victory last year.

SFU’s loss of membership was made public Feb. 1. Kirkpatrick said that Hanson unsuccessfully inquired in the second half of February about joining the Rocky Mountain Athletic Conference and Northern Sun Intercollegiate Conference. Neither had an opening for a new member. SFU then considered playing as an independent, but deemed it “virtually impossible,” because it would have possibly meant playing all games on the road.

“Other schools wouldn’t want to incur the cost of travelling to SFU,” Kirkpatrick said.

Dropping to Division III would not have been feasible at SFU, where athletes in other sports compete in Division II, and because Division III does not allow scholarships, Kirkpatrick said.

Kirkpatrick said Hanson also contacted the National Association of Intercollegiate Athletics and U Sports about a bylaw change or an exemption to allow SFU to play, but did not get a commitment from either.

Finally, in “late March,” the decision was made to cancel the program. It was communicated to players on April 4, along with an offer to honour their scholarships through the 2023-24 school year and assist any interested player to transfer to another university where they could continue playing football. 

Since then, Kirkpatrick said, the student athletes were provided updates on April 13 and April 18. Their scholarships will now last beyond next year, until the end of their degree studies. They will receive priority enrolment, access to academic advisers and tutoring, access to SFU sports medicine and mental health and wellbeing resources.

Hanson’s affidavit said SFU budgeted for $572,649 in financial aid to football, and 67 student athletes received a combined $438,250 in scholarships. After the program was cancelled, coaches received severance pay for without-cause termination and the total payout was nearly $90,000.

SFU had budgeted $953,541 to run the football team in 2023, up $185,812 from last year, including $423,605 for salaries and benefits, $399,076 for travel and $125,860 for operating expenses.

Earlier, Gall told the court that SFU is legally required to put the team back together and play at least one more season.

“The players agreed to come to SFU on the promise that they could play football and receive education, some of them receive financial aid,” Gall said. “In return, the players made a meaningful commitment to SFU to come to the university and play football there and that benefited SFU.”

Gall said money is not an issue and neither is the number of players: 97 were committed to participate in the 2023 fall camp, slightly down from last year’s 104 and below the 100-player ceiling desired by the athletic director.

“We're not saying that the program has to be continued forever,” Gall said. “What we're saying in this case is that this decision was premature.”

The plaintiffs include: Quarterback Gideone Kremler, a fifth-year communications major and psychology minor with two years remaining of NCAA eligibility; cornerback Kimo Hiu, a third-year business student with two years remaining; defensive back Andrew Lirag, a second-year student of criminology, with three years remaining; defensive back Ryan Barthelson, a criminology student with one year left; and linebacker Dayton Ingenhaag, a third-year double minor in kinesiology and sociology, with two years left.

BC Lions’ owner Amar Doman has pledged financial support to revive the SFU program, the Canadian Football League’s biggest source of draft picks. Legendary Lions’ kicker Lui Passaglia is among several SFU alumni who are protesting the end of the football team by demanding to be removed from the university’s sports hall of fame.