Appeal of M.O., on behalf of his child, from action of Section XI of the New York State Public High School Athletic Association regarding athletic eligibility.

Decision No. 18,232

(January 30, 2023)

Kevin A. Seaman, Esq., attorney for respondent

ROSA., Commissioner.--Petitioner appeals a determination of Section XI of the New York State Public High School Athletic Association (“respondent”) that his child (the “student”) is not eligible to participate in interscholastic sports as a member of the high school baseball team for the 2021-2022 season.  The appeal must be dismissed.

The student played baseball for the Huntington Union Free School District (the “district”) for six consecutive seasons from 2016 through 2021.  At petitioner’s request, respondent allowed the student to repeat eleventh grade during the 2020-2021 school year.  As such, the student attended twelfth grade during the 2021-2022 school year.

In February 2022, the district requested an extension for the student to play baseball for a seventh consecutive season in spring 2022.  Respondent’s eligibility committee denied the request.  Petitioner appealed this determination to respondent, which denied the appeal on March 14, 2022.  Respondent determined that the student was not eligible for an eligibility extension because:  (1) the student was not a bona fide student as he was only registered in the equivalent of 2.5 regular courses that did not include physical education; (2) the student did not require additional semesters to graduate due to COVID-19; and (3) petitioner’s request to have the student repeat eleventh grade “d[id] not supersede the … Duration of Competition” regulation.  This appeal ensued.  Petitioner’s request for interim relief was denied on April 7, 2022.

Petitioner seeks an extension of athletic eligibility to enable the student to participate in the 2021-2022 baseball season.

Respondent contends that petitioner lacks standing to maintain this appeal, failed to join the district as a necessary party, and failed to exhaust his administrative remedies.  On the merits, respondent argues that its denial of petitioner’s request for an eligibility extension was rational.

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 that no longer exists due to the passage of time or a change in circumstances (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; see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]).  Where the Commissioner can no longer award a petitioner meaningful relief on his or her claims, no live controversy remains and the appeal must be dismissed (Appeal of R.B., 57 Ed Dept Rep, Decision No. 17,394; Appeal of N.C., 40 id. 445, Decision No. 14,522).

Petitioner’s request for relief concerns eligibility to participate in interscholastic baseball during the 2021-2022 school year.  Because the 2021-2022 baseball season has ended, the appeal is academic and 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 were not dismissed as moot, it would be dismissed on the merits.  Section 135.4 (c) (7) (ii) (b) (2) of the Commissioner’s regulations provides as follows:

A pupil shall be eligible for interschool competition or inclusive athletic activities in a sport during a semester, provided that he or she is a bona fide student, enrolled during the first 15 school days of such semester, is registered in the equivalent of three regular courses, is meeting the physical education requirement, has not graduated from high school, … and has been in regular attendance 80 percent of the school time, bona fide absence caused by personal illness excepted.

A separate section of the Commissioner’s regulations defines a bona fide student as “a regularly enrolled student who is taking sufficient subjects to make an aggregate amount of three courses and who satisfies the physical education requirement” (8 NYCRR 135.1 [g]).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

The record indicates that, during the spring 2022 semester, the student was enrolled in only 2.5 credit hours of classes, which did not include physical education.  Petitioner has not submitted any evidence to support his claim that the student was not required to take physical education or that the college courses he was enrolled in at the time were the equivalent of “three regular courses” at the high school.  Indeed, petitioner admits in his reply that the student needed only one high school course—English language arts—to graduate.  Accordingly, petitioner has failed to demonstrate that the student was a bona fide student eligible to participate in interscholastic athletics for the district. 

I am sympathetic to petitioner’s explanation of the importance of baseball to the student.  However, on this record, I cannot find that respondent acted arbitrarily or capriciously in denying petitioner’s request to permit the student to participate in the spring 2022 baseball season (Appeal of a Student with a Disability, 59 Ed Dept Rep, Decision No. 17,806).  Accordingly, the appeal would be dismissed on the merits even if it were not dismissed as moot.

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

THE APPEAL IS DISMISSED.

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