Appeal of V.G., on behalf of his son J.G., from action of the Board of Education of the Nyack Union Free School District; Joseph Sigillo as Director of Physical Education, Health, Wellness, and Athletics; and Nyack High School regarding athletic eligibility.

Decision No. 17,792

(November 20, 2019)

Keane & Beane, P.C., attorneys for respondent, Ralph C. DeMarco, Esq., of counsel

TAHOE., Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Nyack Union Free School District; Joseph Sigillo, as Director of Physical Education, Health, Wellness, and Athletics (“athletic director”); and Nyack High School (collectively, “respondents”) that his son J.G. (“the student”) was ineligible to participate in interscholastic athletics during the 2018-2019 school year.  The appeal must be dismissed.

During the 2018-2019 school year, the student was a senior at Nyack High School, where he had previously participated as a member of the school’s interscholastic soccer and wrestling teams.  As relevant here, the student turned 19 on June 29, 2018 – during the 2017-2018 school year.

Sometime thereafter, the athletic director informed petitioner that, pursuant to section 135.4(c)(7)(ii)(b)(1) of the Commissioner’s regulations, the student would be ineligible to participate in interscholastic athletics during the 2018-2019 school year because he had turned 19 prior to the start of the school year on July 1, 2018.  This appeal ensued.  Petitioner’s request for interim relief was denied on August 14, 2018.

Petitioner contends that extenuating circumstances should permit the student to participate in interscholastic soccer and wrestling.  As relief, petitioner seeks an order permitting the student to participate in interscholastic athletics during the 2018-2019 school year.

Respondents assert that the appeal must be dismissed for failure to join the New York State Public High School Athletic Association (“NYSPHSAA”) and Section I of NYSPHSAA as necessary parties.  Respondents further contend that the student was ineligible to participate in interscholastic athletics during the 2018-2019 school year pursuant to section 135.4(c)(7)(ii)(b)(1) of the Commissioner’s regulations.

First, I must address the procedural issues.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).

NYSPHSAA is a voluntary association of public and non-public secondary schools that serves as a governing body for interscholastic athletics.  Accordingly, in addition to the provisions of section 135.4 of the Commissioner’s regulations governing interscholastic athletic competition, NYSPHSAA’s member schools are subject to NYSPHSAA’s Bylaws and Eligibility Standards.

Respondents contend that NYSPHSAA and Section I are necessary parties to this appeal because Nyack High School is a member thereof and they would be affected by a decision in petitioner’s favor.  Notably, however, respondents fail to establish how NYSPHSAA or Section I would be affected, as there is no evidence in the record that either NYSPHSAA or Section I rendered a determination regarding the student’s eligibility to participate in interscholastic athletics during the 2018-2019 school year.  In the absence of any evidence that either NYSPHSAA or Section I was involved in this matter, I do not find that a decision herein would adversely affect NYSPHSAA or Section I (cf. Appeal of Munno, 57 Ed Dept Rep, Decision No. 17,201).  Therefore, I decline to dismiss the appeal for failure to join NYSPHSAA and Section I as necessary parties.

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).  Here, petitioner seeks only to be permitted to participate in interscholastic soccer and wrestling during the 2018-2019 school year.  As noted, petitioner’s request for interim relief was denied on August 14, 2018, and the 2018-2019 school year has ended.  Consequently, the matter is moot (Appeal of P.D. and C.C., 56 Ed Dept Rep, Decision No. 16,999).

In any event, even if the appeal were not moot, it would be dismissed on the merits.  Section 135.4(c)(7)(ii)(b)(1) of the Commissioner’s regulations provides, in relevant part, that “[a] pupil shall be eligible for interschool competition in grades 9, 10, 11 and 12 until the last day of the school year in which he or she attains the age of 19....”

Petitioner admits that the student attained the age of 19 on June 29, 2018 – during the 2017-2018 school year.  Therefore, respondents correctly determined that petitioner was ineligible to compete in interscholastic athletics during the 2018-2019 school year.  The regulation in question contains no provision for a waiver of the maximum age limitation (Appeal of Cham, 55 Ed Dept Rep, Decision No. 16,873).

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

THE APPEAL IS DISMISSED.

END OF FILE