Appeal of the BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF BINGHAMTON from action of the New York State Public High School Athletic Association and Section IV of the New York State Public High School Athletic Association, regarding athletic eligibility.

Decision No. 17,590

(February 22, 2019)

Coughlin & Gerhart, LLP, attorneys for petitioner, Nathan D. VanWhy, Esq., of counsel

Renee L. James, Esq., attorney for respondent New York State Public High School Athletic Association

Levene, Gouldin & Thompson, LLP, attorneys for respondent Section IV of the New York State Public High School Athletic Association, David M. Gouldin, Esq., of counsel

ELIA., Commissioner.--Petitioner Board of Education of the City School District of the City of Binghamton appeals the determination of the New York State Public High School Athletic Association (“NYSPHSAA” or “respondent”) which upheld the denial by Section IV of NYSPHSAA (“Section IV”) of petitioner’s application for extended eligibility on behalf of E.F. (“the student”) to play on its varsity football team.  The appeal must be dismissed.

Respondent NYSPHSAA is a voluntary association of public and non-public schools organized to provide a central association through which students may compete in interscholastic athletics.  Respondent Section IV is a subdivision of NYSPHSAA and petitioner is a member of Section IV.  In addition to the provisions of Commissioner’s regulation §135.4 governing interscholastic athletic competition, NYSPHSAA’s member schools are governed by NYSPHSAA’s Bylaws and Eligibility Standards (“bylaws”).

The record indicates that, on June 15, 2017, petitioner submitted an application to Section IV seeking extended athletic eligibility on behalf of the student to play during the 2017-2018 football season.  Petitioner’s application indicated that the student participated in football for four consecutive seasons but that circumstances beyond his control limited the student’s ability to participate in significant portions of at least two full football seasons and also required the student to attend school for an additional year in order to graduate.

According to the record, in the 2013-2014 school year the student was enrolled as a ninth-grade student in the Vestal Central School District (“Vestal”) and participated as a member of its football team.  However, the student’s academic performance and participation in athletics were negatively impacted by circumstances in his home life.  As a result, the student repeated grade nine during the 2014-2015 school year at Vestal in an alternative education program operated by the Broome-Tioga Board of Cooperative Educational Services (“BOCES”).  He participated as a member of Vestal’s varsity football team during the 2014-2015 school year.  In the spring of 2015, the student’s father obtained custody and enrolled the student in grade nine in respondent’s school district.

The record indicates that, upon enrollment in petitioner’s high school, the student’s academic performance significantly improved.  Petitioner avers that, through his participation in interscholastic football during the 2015-2016 and 2016-2017 school years, the student thrived academically and socially.  By application dated June 15, 2017, petitioner applied to Section IV for the student’s extended athletic eligibility to play a fifth season of football on petitioner’s football team.

By letter dated July 20, 2017, the Section IV Committee for Extended Eligibility denied petitioner’s request, citing the student’s actual participation in interscholastic football during four consecutive seasons from the 2013-2014 school year through the 2016-2017 school year.  Petitioner appealed that determination to Section IV’s Appeal Committee, which by letter dated August 14, 2017, affirmed the decision of the Extended Eligibility Committee to deny petitioner’s request.

In accordance with NYSPHSAA’s procedures, petitioner appealed the denial to the NYSPHSAA Appeal Panel.  By decision dated September 13, 2017, NYSPHSA’s Appeal Panel held that, because the student participated in four consecutive years of competition, he was ineligible for a fifth year of eligibility, regardless of underlying circumstances.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 11, 2017.

Petitioner contends that respondent’s denial of its request for extended eligibility on behalf of the student was arbitrary and capricious.  Petitioner asserts that the student was unable to participate in a significant portion of at least two football seasons due to his personal circumstances, which also required him to attend high school for a fifth year in order to graduate, and should, therefore, be granted extended eligibility for a fifth year.  As relief, petitioner seeks an order permitting the student to participate in interscholastic football during the 2017-2018 season.

Respondent NYSPHSAA asserts that the denial of petitioner’s extended eligibility request was neither arbitrary nor capricious but was consistent with Commissioner’s regulations governing participation in interscholastic athletics.  Respondent further asserts that it does not have the authority to amend the regulation or alter the rules relating to the duration of participation in interscholastic athletics.  Respondent NYSPHSAA further contends that the petition was not properly served.

Section IV asserts that its decision and respondent NYSPHSAA’s decision upholding it are consistent with Commissioner’s regulations, warranting dismissal of the appeal.

I will first address a procedural matter.  In its verified answer, respondent NYSPHSAA asserts that the petition was not properly served.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  Petitioner submits an affidavit of service indicating that the petition was served on respondent NYSPHSAA, a not-for-profit corporation registered with the New York State Department of State, by delivering such petition to the Office of the Secretary of State of the State of New York pursuant to Not-for-Profit Corporation Law §306 on September 22, 2017 (see also Civil Practice Law and Rules §311[a][1]).  Other than its conclusory assertion, respondent NYSPHSAA does not submit any evidence with its answer supporting its affirmative defense of lack of proper service.  The burden is on respondent NYSPHSAA to establish its affirmative defenses and under these circumstances, respondent has waived, abandoned or otherwise failed to establish such defense (see Appeal of Gates, 57 Ed Dept Rep, Decision No. 17,264; Appeal of Kenton, 54 id., Decision No. 16,649; Application of Simmons, 53 id., Decision No. 16,596).  Thus, I decline to dismiss the appeal for failure to properly serve respondent NYSPHSAA.

Nevertheless, the appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  The sole relief sought by petitioner in this appeal is an order that the student was eligible to participate as a member of its varsity football team for the 2017-2018 season.  As noted above, petitioner’s request for interim relief was denied.  The 2017-2018 football season and the 2017-2018 school year have both concluded.  Consequently, the matter is academic, and the appeal must be dismissed (Appeal of a Student with a Disability, 56 Ed Dept Rep, Decision No. 17,081; Appeal of N.M., Sr., 55 id., Decision No. 16,846).

Even if the appeal was not dismissed as moot, it would be dismissed on the merits.  Commissioner’s regulation §135.4(c)(7)(ii)(b)(1) governs student participation in interscholastic sports and provides in pertinent part:

(1) Duration of competition. A pupil shall be eligible for senior high school athletic competition in a sport during each of four consecutive seasons of such sport commencing with the pupil's entry into the ninth grade and prior to graduation, except as otherwise provided in this subclause....  A pupil enters competition in a given year when the pupil is a member of the team in the sport involved, and that team has completed at least one contest....

The regulation further provides for an extension of athletic eligibility under the following circumstances:

(i) If sufficient evidence is presented by the chief school officer to the section to show that the pupil's failure to enter competition during one or more seasons of a sport was caused by illness, accident, documented social/emotional condition, or documented social/emotional circumstances beyond the control of the pupil, such pupil's eligibility shall be extended accordingly in that sport (emphasis added).

Here, the record indicates, and petitioner does not dispute, that the student entered competition for four consecutive seasons of football, beginning with the 2013-2014 school year.  Petitioner contends that, because the student’s participation in two seasons was limited as a result of the circumstances he faced at home, his eligibility should be extended.  However, Commissioner’s regulation §135.4(c)(7)(ii)(b)(1) only provides for an opportunity to extend a student’s athletic eligibility when such student has not entered competition in a given season.  The regulation provides that ”[a] pupil enters competition in a given year when the pupil is a member of the team in the sport involved, and that team has completed at least one contest” (8 NYCRR §135.4[c][7][ii][b][1]; see e.g., Appeal of the Board of Education of the Spencerport Central School District, et al., 36 Ed Dept Rep 49, Decision No. 13,651; Appeal of Duane, 35 id. 277, Decision No. 13,540; Appeal of Board of Education of the Phelps-Clifton Springs Central School District, 34 id. 108, Decision No. 13,248).

As a threshold matter, the record clearly indicates that the student entered competition in football for the 2013-2014, 2014-2015, 2015-2016 and 2016-2017 school years.  Consequently, I cannot find that respondent’s determination that the student was ineligible for a fifth year of competition is arbitrary, capricious or contrary to law.

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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