Application of J.J.M., on behalf of his son J.M., to review a determination of the New York State Public High School Athletic Association regarding eligibility to participate in interscholastic athletics.

Decision No. 15,575

(April 20, 2007)

Renee James, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the determination by Section IX of the New York State Public High School Athletic Association (“NYSPHSAA” or “respondent”) that his son, J.M., is ineligible for interscholastic competition for the 2006-2007 school year.  The appeal must be dismissed.

J.M. is a high school senior in the Hyde Park Central School District (“the district”).  J.M. entered high school as a freshman in the 2002-2003 school year.  However, from November 2002 through May 2003 he lived in England with his mother.  As a result, J.M. repeated ninth grade in the district during the 2003-2004 school year and participated in interscholastic baseball during three successive seasons (2003-2004, 2004-2005 and 2005-2006). 

On June 19, 2006, the district submitted a request for extended eligibility, on J.M.’s behalf, for the spring 2007 interscholastic baseball season.  On September 12, 2006, the NYSPHSAA Section IX Eligibility Committee (“Eligibility Committee”) denied the district’s request.  By letter dated October 18, 2006, the NYSPHSAA Section IX Athletic Council (“the Council”) upheld the determination of the Eligibility Committee and advised the district accordingly.  By letter dated November 20, 2006, the district notified petitioner of the Council’s determination that J.M. was not eligible for an extension of eligibility and that the district was not going to pursue an appeal of such determination.  This appeal ensued. 

Petitioner requests a one-year extension of J.M.’s

eligibility based on unusual circumstances.  Specifically, petitioner contends that J.M. should be granted a fifth year of eligibility because J.M. lived in England during the 2002-2003 school year with his mother, due to circumstances beyond J.M.’s control and, therefore, he was unable to participate in baseball that year.

Respondent alleges that J.M. had four years of eligibility for baseball and that petitioner has failed to present any documentation by a medical care provider that he was unable to participate in interscholastic athletics in one or more seasons due to an accident, illness or similar circumstances beyond his control.  Respondent further contends that the appeal is untimely, that petitioner failed to join a necessary party, that the petition fails to state a cause of action and that petitioner failed to exhaust his administrative remedies.

The appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeals of Sitaras, et al., 43 Ed Dept Rep 434, Decision No. 15,044; Appeal of Malek, 41 id. 312, Decision No. 14,697).  Here, petitioner’s request for an extension of eligibility was denied on October 18, 2006 and the decision was forwarded to petitioner on November 20, 2006.  Petitioner commenced this appeal on January 29, 2007, more than two months later.

Petitioner requests that I excuse his delay in commencing this appeal because he attempted to appeal his son’s denial of eligibility by letter dated November 29, 2006.  By letter dated December 11, 2006, petitioner was advised by State Education Department staff that he would need to file a formal appeal to the Commissioner under Education Law §310.  Petitioner commenced this appeal on January 29, 2007, more than one month later.  Except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of E.M., 44 Ed Dept Rep 156, Decision No. 15,130; Appeal of R.A. and D.A., 43 id. 281, Decision No. 14,995).  Based upon the record before me, I do not find unusual circumstances.  Therefore, the appeal must be dismissed as untimely.

Even if the appeal were not dismissed on procedural grounds it would be dismissed on the merits. Section 135.4(c)(7)(ii)(b)(1) of the Commissioner's regulations governs student participation in interscholastic sports and provides, in pertinent part:

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.

...

(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, or similar circumstances beyond the control of the student, such pupil’s eligibility shall be extended accordingly in that sport.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329). 

Here, petitioner contends that J.M. should be granted a fifth year of eligibility because J.M. was in England during the 2002-2003 school year with his mother, due to circumstances beyond J.M.’s control and, therefore, was unable to participate in baseball that year.  In support of his claim, petitioner submitted a letter from his pastor indicating that J.M. suffered from emotional problems during the 2002-2003 school year which affected his ability to function.  I find this letter insufficient to demonstrate that J.M.’s failure to compete in interscholastic baseball during the 2002-2003 school year was caused by illness, accident or similar circumstances beyond J.M.’s control (seeAppeal of Bartling, 35 Ed Dept Rep 324, Decision No. 13,558).  It is well settled that a student who does not participate during a period of eligibility, but who is physically able to do so, is not entitled to an extension of eligibility (Appeal of Braemer, 43 Ed Dept Rep 432, Decision No. 15,043; Appeal of Duane, 35 id. 277, Decision No. 13,540; Appeal of Bethe, 34 id. 526, Decision No. 13,402).  While I am sympathetic to petitioner's arguments, there is no basis for overturning respondent's determination.

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

THE APPEAL IS DISMISSED.

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