Decision No. 12,924

(April 30, 1993)

Hancock & Estabrook, Esqs., attorneys for respondent, Renee L. James, Esq., of counsel

SOBOL, Commissioner.--Petitioners seek review and reversal of a determination made on November 5, 1992 by the Extended Eligibility Committee of Section III of the New York State Public High School Athletic Association, Inc. The committee's written decision denied the application of Marcus Curry for athletic eligibility for the 1992-1993 school year. The appeal must be dismissed.

Marcus Curry is presently a fifth-year senior at Nottingham High School in the Syracuse City School District. He entered the ninth grade in September 1988 and during the 1988-1989 season played interschool basketball at Corcoran High School in respondent district. He also played interschool basketball at Corcoran during the 1989-1990 season. During the 1990-1991 season, Marcus repeated the tenth grade, and again played interschool basketball, first at the junior varsity level, then at the varsity level at Nottingham High School. As an eleventh-grader during 1991-1992, he again played interschool basketball at Nottingham.

The petition indicates that during his first three seasons of interschool competition, because of an unstable home situation, Marcus was absent from a total of fifteen basketball games. It appears that during his eleventh-grade season (1991-1992), when he resided with petitioners, he did not miss any games.

Prior to the beginning of the 1992-1993 basketball season, petitioners applied to Section III for a ruling on Marcus' eligibility for the season. The Extended Eligibility Committee met on November 5, 1992 to consider the application. Marcus Curry was represented by petitioners and by the Nottingham varsity basketball coach, an employee of respondent. The committee denied the request for extended eligibility on the ground that Marcus Curry had exhausted his eligibility under 8 NYCRR '135.4(c)(7)(ii)(b)(1) and that no exception to the rule was applicable.

Petitioners contend that, through no fault of his own, Marcus Curry has missed fifteen basketball games over the course of his high school career, the approximate equivalent of a full season. They argue that in fairness and equity, he should be granted an additional season of eligibility. Respondent contends that the petition states no claim against it, that the appeal is untimely, that petitioners have failed to join and serve Section III of the New York State Public High School Athletic Association, Inc., and that, in any event, the determination on eligibility was correct on the merits.

Petitioners have brought this appeal against the wrong party. The determination on extended eligibility was made by Section III, and not by the respondent board of education. The affidavit of service indicates that the petition was served only at the main office of respondent school district. Section III is neither named as a party, nor was it served. However, a decision favorable to petitioners would necessarily affect the interests of Section III. Accordingly, I find that Section III is a necessary party, and that this appeal states no claim against respondent district, which apparently used its best efforts to assist Marcus in his application for extended eligibility. Consequently, the appeal must be dismissed for the same reasons set forth in Appeal of Buckenzie (32 Ed Dept Rep 32) and Appeal of Basile (32 id. 330).

The appeal must also be dismissed on the merits. Under 8 NYCRR '135.4(c)(7)(ii)(b)(1), a student is generally eligible for high school competition during each of four consecutive seasons commencing with the student's entry into the ninth grade. While there are exceptions provided for a student's "failure to enter competition" because of illness, accident, or similar circumstances beyond the control of the student, the record is clear that Marcus Curry did in fact enter competition and played numerous games in four consecutive basketball seasons. While the family circumstances described in the petition are regrettable, I note that nearly half the fifteen games allegedly missed by Marcus Curry were attributable to a disciplinary incident near the end of the 1990-1991 season. Indeed, the seven games missed after that incident were post-season games, not regular season games.

In view of the disposition, it is unnecessary to consider the other contentions of the parties.

THE APPEAL IS DISMISSED.

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