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Decision No. 16,323

Appeal of GIULIO and LINDA SANTORIO, on behalf of their daughter GABRIELLE, from action of the New York State Public High School Athletic Association, Inc. and Executive Director Nina VanErk regarding interscholastic athletics.

Decision No. 16,323

(December 29, 2011)

Renee L. James, Esq. attorney for respondent New York State Public High School Athletic Association

KING, JR., Commissioner.--Petitioners appeal the determination of the New York State Public High School Athletic Association, Inc. (“NYSPHSAA”) and its Executive Director,  Nina VanErk (collectively “respondents”), that their daughter, Gabrielle,[1] was ineligible for interscholastic competition for the 2011-2012 soccer season.  The appeal must be dismissed.

Petitioners’ daughter attends twelfth grade in the City School District of the City of Schenectady (“the district”).  The record indicates that Gabrielle participated in the district’s varsity soccer program as a selectively classified seventh and eighth grader during the 2006-2007 and 2007-2008 school years.  During the fall season of the 2008-2009 school year, she played varsity soccer with the district as a ninth grader. 

In late 2008, petitioners’ family moved to Texas where Gabrielle was able to participate in a second soccer season during her ninth grade year because the soccer season in Texas runs from December through April.  During the 2009-2010 school year, Gabrielle participated in soccer in Texas for her third season since entering ninth grade (her fifth season since entering the seventh grade).  Then, during the summer of 2010, petitioners’ family moved back to New York and Gabrielle played soccer on the district’s girls’ varsity soccer team during the 2010-2011 season.  This was her junior year, and her fourth season of soccer since her entry into ninth grade (her sixth season from entry into seventh grade).

In November 2010, the district submitted a request for Gabrielle’s participation during the fall 2011 soccer season to the NYSPHSAA Section II Extended Eligibility Committee (“Eligibility Committee”).  By letter dated December 22, 2010, the Eligibility Committee denied the district’s request because Gabrielle had participated in multiple soccer programs and reached her maximum of six seasons.  In January 2011, the district appealed that determination to the NYSPHSAA Appeal Panel (“panel”), which scheduled a hearing for January 18, 2011.  On January 20, 2011, the panel issued a written determination finding, interalia, that Gabrielle was ineligible to participate in soccer pursuant to §135.4(c)(7)(b)(1) of the Commissioner’s regulations.  This appeal ensued.  Petitioners’ request for interim relief was denied on September 14, 2011.  

Petitioners maintain that their delay in commencing this appeal should be excused and contend that it is unfair to penalize their daughter for availing herself of the opportunity to play soccer when they resided in Texas.  Respondents maintain that their decision was not arbitrary and capricious and that the petition must be dismissed as untimely and moot. 

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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  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 Stieffenhofer, 48 Ed Dept Rep 231, Decision No. 15,846; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821).  As stated previously, the record indicates that the panel issued a written determination dated January 20, 2011 finding Gabrielle ineligible to participate in the district’s 2011-2012 soccer season.  However, petitioners did not serve the petition in the instant appeal upon NYSPHSAA until September 6, 2011, more than eight and a half months later.  Petitioners offer several excuses for their delay, including that they were unfamiliar with the procedures for bringing an appeal pursuant to §310 of the Education Law, believed that the district would commence such an appeal, and were affected by changes in personnel at the New York State Education Department.  I find such excuses unavailing.  Accordingly, the appeal must be dismissed as untimely.

Additionally, respondents argue that this appeal is moot because the NYSPHSAA regular soccer season for girls ended in October and the State Finals were held on November 19 and 20, 2011.  Petitioners did not submit a reply or any other evidence to refute these allegations.  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).  Since the district’s 2011-2012 soccer season has ended, the appeal must be dismissed as moot.

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



[1] I note that respondent refers to petitioners’ daughter as “Gabriella” on numerous occasions.