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Decision No. 15,043

Appeal of WALTER R. BRAEMER, on behalf of his son JOSHUA BRAEMER, from action of the Board of Education of the Fort Plain Central School District regarding participation in interscholastic athletics.


(March 30, 2004)


Michael W. Smrtic, Esq., attorney for petitioner 

Girvin & Ferlazzo, P.C., attorneys for respondent, Kathy Ann Wolverton, Esq., of counsel 

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Fort Plain Central School District ("respondent") that his son, Joshua, is ineligible for interscholastic competition for the 2003-2004 school year.  The appeal must be dismissed.

During the 1999-2000 school year, Joshua was enrolled in a nonpublic school as a high school freshman.  Because of petitioner"s dissatisfaction with the nonpublic school, petitioner enrolled Joshua in respondent"s school district for the 2000-2001 school year, where he has attended since and is currently a senior.

By letter dated May 15, 2003 to the Chairperson of the Section II Eligibility Committee of the New York State Public High School Athletic Association ("NYSPHSAA"), respondent"s high school principal sought a determination regarding Joshua"s eligibility for interscholastic competition for the 2003-2004 school year.  By letter dated August 21, 2003, NYSPHSAA informed respondent that Joshua was ineligible for interscholastic sports for 2003-2004 because he had earned credits for ninth grade during the 1999-2000 school year and therefore was eligible for competition only through the 2002-2003 school year.  By letter dated September 8, 2003, respondent"s superintendent informed petitioner that he had a right to appeal NYSPHSAA"s determination to the Commissioner of Education.  This appeal ensued.  Petitioner"s request for interim relief was denied on December 12, 2003.

Petitioner contends that he was required to enroll Joshua in the nonpublic school for the 1999-2000 school year because, at that time, he was pastor of the church affiliated with the school.  He alleges that these circumstances were beyond Joshua"s control and therefore constitute sufficient grounds to extend Joshua"s eligibility for interscholastic sports for an additional school year.  Petitioner also requests that I excuse his delay commencing this appeal, explaining that he initially attempted to appeal his son"s denial of eligibility by letter dated September 15, 2003.

Respondent contends, among other things, that it is not a proper party to this appeal because NYSPHSAA, not respondent, made the determination challenged by petitioner.

Petitioner has brought this appeal against the wrong party. The determination on extended eligibility was made by NYSPHSAA, not by respondent.  NYSPHSAA is neither named as a party, nor is there any evidence that it was served.  However, a decision favorable to petitioner would necessarily affect the interests of NYSPHSAA.  Accordingly, I find that NYSPHSAA is a necessary party, and that this appeal states no claim against respondent, whose high school principal simply requested a determination from NYSPHSAA regarding Joshua"s eligibility for interscholastic competition.  Consequently, the appeal must be dismissed (Appeal of Bartling, 35 Ed Dept Rep 324, Decision No. 13,558; Appeal of Basile, 32 id. 330, Decision No. 12,844; Appeal of Buckenzie, 32 id. 32, Decision No. 12,747).

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.

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(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 Joshua should be granted a fifth year of eligibility because Joshua was required to attend nonpublic school during the 1999-2000 school year as a condition of petitioner"s employment as church pastor.

There is no evidence that petitioner"s son met the standards for extended eligibility for the 2003-2004 school year.  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 Duane, 35 Ed Dept Rep 277, Decision No. 13,540; Appeal of Bethe, 34 id. 526, Decision No. 13,402; Matter of Clowe, 21 id. 192, Decision No. 10,649).  Petitioner has failed to demonstrate that Joshua was not physically able to compete because of "illness, accident, or similar circumstances beyond the control of the student" as required by " 135.4 of the Commissioner"s regulations.  While petitioner"s concerns are certainly understandable, there is no basis to interfere with NYSPHSAA"s determination.

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