Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of Section XI of the New York State Public High School Athletic Association regarding athletic eligibility.

Decision No. 17,081

(April 26, 2017)

Kevin A. Seaman, Esq., attorney for respondent

ELIA, Commissioner.--Petitioner appeals a determination of the Eligibility Committee of Section XI of the New York State Public High School Athletic Association (“respondent”) that her son (“the student”) is not eligible to participate in interscholastic sports as a member of the Walter G. O’Connell Copiague High School varsity basketball team for the 2016-2017 season.  The appeal must be dismissed.

The student is a 12th grade student attending the Walter G. O’Connell Copiague High School.  The record indicates that the student began attending the ninth grade at a school in Maryland during the 2012-2013 school year.  During the 2012-2013 interscholastic basketball season, the student made the junior varsity basketball team but he did not play due to a knee injury, and his position on the team roster was replaced.  The record indicates that during the 2013-2014 school year the student began tenth grade in Maryland, relocated to his father’s home in Virginia in December 2013 due to “difficulties” with his stepfather, and subsequently returned to Maryland in March 2014 to complete the remainder of the 2013-2014 school year.  However, petitioner asserts that the student’s living situation was “unstable” and that he did not complete tenth grade.  Petitioner asserts that the student did not play basketball during the 2013-2014 school year.

In the 2014-2015 school year, the student relocated to New York to live with a family member and was enrolled in school in the Connectquot Central School District as a homeless unaccompanied youth pursuant to the federal McKinney-Vento Homeless Education Assistance Act (42 USC §11431 et seq., “McKinney-Vento”).  During the 2014-2015 school year, the student repeated tenth grade and played interscholastic basketball.  For the 2015-2016 school year, the student was enrolled in the 11th grade in the Upper Room Christian School where he again played basketball. 

The student now attends the Walter G. O’Connell Copiague High School as a 12th-grade-student and seeks a fifth year of eligibility to play interscholastic basketball during the 2016-2017 basketball season.  Although the petition is not entirely clear, petitioner asserts that “[p]aperwork was submitted to NYSPHSAA requesting [the student] recoup the year he missed playing basketball due to injury.”  Petitioner submits an undated letter addressed to NYSPHSAA which appears to comprise such request as she seeks “the opportunity to retrieve the year that [the student missed] 2012/2013, due to being diagnosed with Osgood-Schlatter’s Disease....”

At some point prior to the 2016-2017 basketball season, the Walter G. O’Connell Copiague High School, on behalf of the student, requested an athletic eligibility extension from respondent.  By letter dated November 15, 2016, respondent indicated that its Eligibility Committee considered the waiver request on November 19, 2016 and denied the waiver request citing insufficient evidence.[1]  This appeal ensued.  Petitioner’s request for interim relief was denied on December 15, 2016.

Petitioner seeks an extension of athletic eligibility to enable the student to participate in the 2016-2017 basketball season.  Petitioner appears to argue that if the student’s knee injury which prevented him from participating in the 2012-2013 basketball season does not qualify for an eligibility extension, the “unusual and unexpected” circumstances which resulted in his failure to participate during the 2013-2014 season should amount to an accident sufficient to warrant such extension.

Respondent asserts that its denial of petitioner’s request for an eligibly extension waiver was proper.  Respondent further contends that petitioner lacks standing to maintain this appeal, failed to join the Copiague Central School District as a necessary party, failed to exhaust her administrative remedies, and fails to state a claim upon which relief can be granted.

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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Petitioner’s request for relief concerns eligibility to participate in interscholastic basketball during the 2016-2017 school year.  The record indicates that the 2016-2017 basketball season has ended.  Consequently, the appeal is academic and must be dismissed (Appeal of N.M., Sr., 55 Ed Dept Rep., 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)(1) of the Commissioner's regulations (the “regulation”) 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 or accident, such pupil's eligibility shall be extended accordingly in that sport....

The regulation further provides:

In order to be deemed sufficient, the evidence must include documentation showing that as a direct result of the illness or accident, the pupil will be required to attend school for one or more additional semesters in order to graduate.

Thus, the regulation presents a two-pronged test for extended eligibility in the case of injury or illness: (1) the student must not have entered competition in the subject sport in a season; and (2) the injury or illness which caused the student to not enter competition must have also caused the student to require additional time to graduate (Appeal of N.M., Sr., 55 Ed Dept Rep, Decision No. 16,846).

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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

The record indicates that during his freshman year, in the 2012-2013 school year, the student made the junior varsity basketball team at his school in Maryland, but was unable to participate because of a knee injury, and that another player assumed his position on the team.  However, petitioner does not assert, and the record does not show, that the student’s knee injury, which prohibited him from participating in basketball in the 2012-2013 season, caused him to require additional time to graduate.  Petitioner’s failure to prove the required nexus between the student’s injury and the extension of time required for the student to graduate is fatal to her claim (Appeal of N.M., Sr., 55 Ed Dept Rep., Decision No. 16,846).   

Finally, I note that, although the petition is not entirely clear, to the extent petitioner intends to argue in this appeal that the student’s unstable living situation during the 2013-2014 school year constituted an “accident” within the meaning of 8 NYCRR §135.4(c)(7)(ii)(b)(1) which caused the student to require additional time to graduate, the record contains no indication that this claim was before respondent at the time of its determination.  As noted above, petitioner asserts in her verified petition that she requested an extension of eligibility “due to injury” and the record contains no indication that petitioner raised this additional assertion regarding the student’s living situation to respondent prior to commencing this appeal.  Accordingly, respondent has never made a determination on such claim and this appeal therefore seeks review only of respondent’s determination with respect to the student’s knee injury in response to petitioner’s request therefor.  Issues not raised before respondent and presented for its consideration and decision may not be raised for the first time in an appeal to the Commissioner under Education Law §310 (Appeal of J.H., 52 Ed Dept Rep, Decision No. 16,376; Appeal of A.R. and S.R., 40 id. 262, Decision No. 14,477).

While it is unfortunate that the student and his family have undergone several transitions during his high school career, petitioner fails to meet her burden to demonstrate that the student’s knee injury both prevented him from entering competition and caused him to require additional time to graduate.

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

THE APPEAL IS DISMISSED.

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