Appeal of CHRISTIAN BROTHERS ACADEMY from action of the New York State Public High School Athletic Association, Inc. and Section II of the New York State Public High School Athletic Association, Inc., regarding athletic recruitment.

Decision No. 18,360

(December 12, 2023)

Girvin & Ferlazzo, P.C., attorneys for petitioner, Patrick J. Fitzgerald III, Esq., of counsel

Bartlett, Pontiff, Stewart & Rhodes, P.C., attorneys for respondent Section II of the New York State Public High School Athletic Association, Inc., Karla Williams Buettner, Esq., of counsel

Hancock Estabrook, LLP, attorneys for respondent New York State Public High School Athletic Association, Inc., Renee L. James, Esq., of counsel

ROSA., Commissioner.--Petitioner Christian Brothers Academy (“CBA” or “petitioner”) appeals a determination of the New York State Public High School Athletic Association (“NYSPHSAA”) to uphold the penalty imposed on CBA by Section II of NYSPHSAA (“Section II”)[1] for violating NYSPHSAA’s student recruitment rule.  The appeal must be dismissed.

NYSPHSAA is a voluntary association of schools that provides a central organization through which students may compete in interscholastic athletics.  Section II is a subdivision of NYSPHSAA, and CBA is a member of Section II.  In addition to the provisions of Commissioner’s regulation section 135.4 governing interscholastic athletic competition, NYSPHSAA member schools are governed by NYSPHSAA’s rules.

By email dated October 28, 2022, Section II informed petitioner that it had received a complaint from the Saratoga Springs City School District (“Saratoga”) alleging that CBA had violated NYSPHSAA’s “Recruitment and Undue Influence” rule (the “rule”).  Specifically, Saratoga claimed that a member of CBA’s football coaching staff (the “coach”) communicated with the father of an eighth grade Saratoga student-athlete (the “student”) about visiting CBA in violation of the rule.  The email instructed CBA to investigate the matter and respond with its findings, which could include “a defense of the allegations, a self-reported violation of [the rule],” and any measures CBA might take to address the matter.

On November 8, 2022, CBA responded to Section II in a letter from its president.  The president acknowledged that the coach had sent messages to the student’s father but noted that he was neither authorized nor directed to do so.

Thereafter, Section II advised petitioner that it would treat CBA’s November 8 letter as a “self-report” of the alleged violation and invited CBA to provide Section II’s executive committee “with any written material” before it imposed a penalty.  Section II further advised that any penalty would consider “any violations or recommendations previously” imposed.

Throughout November and December 2022, petitioner and Section II exchanged correspondence in which CBA asserted that the coach’s actions did not violate the rule; Section II identified the past violations it would consider in assessing a penalty; and CBA explained the ways in which it believed Section II had inaccurately portrayed these prior incidents.

On December 19, 2022, CBA “presented and shared information” with Section II’s Executive Committee regarding the allegations.  Thereafter, the Executive Committee recommended a penalty under which CBA would be placed on probation through January 25, 2026, and serve a one game suspension during the “week zero scheduling block.”[2] 

By letter dated January 26, 2023, Section II informed CBA that its Athletic Council unanimously approved the recommended penalty.  Petitioner appealed to NYSPHSAA, which upheld the Athletic Council’s determination.  This appeal ensued.  Petitioner’s request for interim relief was denied on April 27, 2023.

Petitioner asserts that respondents’ determination was arbitrary and capricious and seeks expungement of the “findings, penalties, and consequences imposed on” it by respondents.

Respondent NYSPHSAA contends, among other arguments, that its determination was supported by the evidence and that any decision rendered herein will be moot by the time it is issued.  Similarly, Section II asserts that its determination was supported by the evidence and that the Commissioner lacks jurisdiction to rule on the matter.  Section II additionally argues that the petition was not properly served and is untimely.[3] 

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). 

Petitioner asserts that respondents’ determinations concerning its guilt, and the penalty imposed, were arbitrary and capricious because: (1) Section II improperly treated CBA’s November 8, 2022 letter as a self-report, thereby denying CBA the opportunity to defend itself and depriving it of due process; (2) CBA did not violate the rule; and (3) respondents improperly considered CBA’s past violations and incidents and is biased against it. 

            The rule at issue in this appeal states:

25. RECRUITMENT AND UNDUE INFLUENCE:

Recruiting and Undue Influence is defined as the use of influence by any person connected directly or indirectly with a NYSPHSAA school to induce a student to transfer from one school to another, or to enter the ninth grade at a member school for athletic purposes ….

a. The use of undue influence to secure a student for competitive purposes in a sport is prohibited ….

b. Evidence of undue influence includes … personal contact by coaches … in an attempt to persuade transfer …. (emphasis added).

It is undisputed that the coach unilaterally initiated contact with the student’s father via social media.  He did so shortly after the father uploaded a social media post praising his son’s football skills.  The coach and father thereafter engaged in the following exchange:[4]

Coach:                yo wheres your son playing  what school

Father:                Saratoga

Coach:                what u think bout coming to visit cba

Father:                would be a dream come true for [the student]

Coach:                shoot me ur number   I’ll be in touch   we can get him her for a visit asap here

Father:                [provides phone number]

Coach:                perfect I’ll probably hit u like Monday morning I’ll talk to our admissions guy

The intent of this colloquy is self-evident:  that the coach’s interest in the student derived from the student’s status as a football player.  The coach did not ask about the student’s academic interests or scholastic pursuits; instead, the first thing he inquired of the father was: “… wheres your son playing what school” [sic] [emphasis added].  Under these circumstances, it was reasonable for Section II to treat petitioner’s November 8 letter as a self-report and forego an independent review of these undisputed facts. 

In addition, petitioner received multiple opportunities to defend itself, including opportunities to present its version of the incident in multiple letters to Section II, to make an oral presentation to Section II’s Executive Committee before the Committee imposed a penalty, and to submit written and oral argument to NYSPHSAA.  Thus, I find that petitioner received due process in the form of multiple opportunities to be heard.

Petitioner next asserts that the coach’s “innocuous Facebook message to a non-guardian, non-custodial, biological father” did not violate the rule because the father had no ability to influence the family’s decision concerning the student’s enrollment.  This argument is without merit.  Although the father may lack legal custody, petitioner presents no evidence that he is uninvolved in the student’s education.  Indeed, the fact that the coach chose to reach out to him suggests otherwise.[5]

Finally, petitioner asserts that the penalty imposed upon it was arbitrary and capricious because respondents considered prior violations and incidents that were unfounded, remote in time, and/or based on respondents’ pre-existing bias against petitioner.  As detailed in its December 2, 2022 letter to CBA, Section II considered the following incidents in assessing petitioner’s penalty:

• In September 2021, an alleged violation of the rule was brought against CBA.  While the burden of proof was not met in that case, Section II expressed “concerns” and recommended professional development for CBA staff.
• In November 2019, after a hearing, CBA was found to be in violation of the rule.  As a result, CBA was censured and warned that a future infraction of the rule could lead to enhanced penalties.
• In 2015, CBA self-reported a violation of a NYSPHSAA rule regarding transfers and duration of competition.

I agree with petitioner that the 2021 incident cannot be considered against it because it was not substantiated.  Additionally, the 2015 violation is of minimal relevance as it is seven years old, involved a violation of an unrelated rule, and was self-reported by petitioner.  However, the 2019 violation was both recent and relevant, as it involved a violation of the same rule just three years prior.  Therefore, respondents permissibly considered both the 2015 and 2019 violations in reaching its decision, even if the 2015 decision has limited value.

Finally, petitioner argues that language in Section II’s 2021 decision demonstrates bias or predetermination.  In that decision, Section II “suggest[ed] that [petitioner] consider Professional Development” to address five concerns with regard to CBA’s athletic recruitment practices.  The final concern states:

“‘Perception becoming the reality.’  Over the past four (4) years, Section 2 has received four (4) official Recruitment and Undue Influence cases.  CBA has been the accused in three (3) of the four (4).

Petitioner interprets this language to mean that respondents “perceived, and continue to perceive, CBA as guilty even when found to be innocent.”  Regardless of petitioner’s interpretation of this phrase, however, I agree with Section II that

there is nothing in the record ... that demonstrates the 2021 unfounded allegation formed the basis for the current penalty or that there is any ‘perception’ of CBA violating a [r]ule. This is not a case of perception.  CBA violated [the rule], the second time in three years that it did so.

In light of this disposition, it is unnecessary to address the parties’ remaining contentions, including respondents’ procedural defenses. 

THE APPEAL IS DISMISSED.

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