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Decision No. 13,552

Appeal of ANTHONY B. MCMILLIAN from action of the New York State Public High School Athletic Association Section One regarding athletic eligibility.

Decision No. 13,552

(February 5, 1996)

Plunkett & Jaffe, P.C., attorneys for respondent, Marc E. Sharff, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals a determination by Section One of the New York State Public High School Athletic Association (NYSPHSAA) that he is not eligible to participate in interscholastic sports during the 1995-96 school year. The appeal must be dismissed.

During the 1991-92 school year, petitioner attended ninth grade and participated in the basketball program of the Edwin Gould Academy, which at that time was not a member of NYSPHSAA Section One. During the Fall of 1992 and 1993, petitioner attended Franklin K. Lane High School in New York City where he participated in that school's basketball program. Although petitioner completed the basketball season, he failed to successfully complete the 1993-94 academic year. In 1994, petitioner transferred to Ossining High School as a senior. In March 1995, Ossining High School requested that respondent grant petitioner an additional year of eligibility since he would not be graduating in June and because Edwin Gould Academy did not have a "formalized program." Respondent denied the school's request and determined that petitioner was not eligible to participate in athletics for the 1995-96 school year. Respondent's Executive Committee subsequently denied petitioner's appeals for extended eligibility on August 22 and September 18, 1995. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits was denied on January 9, 1996.

Petitioner requests that I permit him to play one more year of high school basketball. Respondent raises two procedural objections: that the petition is not sufficiently clear to advise respondent of the nature of petitioner's claim and that the petition is untimely.

Before reaching the merits, I will address respondent's procedural objection regarding timeliness. Respondent contends that the petition is untimely because its determination was made on September 18, 1995, and petitioner failed to serve the petition until October 30, 1995. An appeal to the Commissioner of Education must be brought within 30 days of the act or decision complained of, except for good cause shown (8 NYCRR 275.16). Since the petition contains no reason why the appeal was not timely commenced, it must be dismissed.

The appeal must also 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:

(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.


(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.

Petitioner contends that he should be permitted to participate in interscholastic athletics during the 1995-96 school year despite the fact that it would be his fifth year of eligibility. It appears that petitioner believes that since he never completed a full academic year at any school, this is a basis to extend his eligibility. The limited record in this case appears to indicate that petitioner played basketball at the Edwin Gould Academy for one year, at the Franklin Lane High School for two years and played one year at Ossining High School. Accordingly, petitioner has been a high school student since the 1991-92 school year and has been eligible for and has competed in interscholastic athletics for four consecutive years (Application of Bethe, 34 Ed Dept Rep 526; Application of Villani, 29 id. 233). The fact that he did not complete certain academic years is not a reason to extend his eligibility. On the record before me, there is no basis to overturn respondent's decision denying petitioner an additional year of eligibility.