Appeal of J.P.S., on behalf of his son N.S., from action of the Board of Education of the Lisbon Central School District regarding interscholastic athletics.

Decision No. 16,614

(June 20, 2014)

Silver & Collins, attorneys for respondent, Andrew W. Silver, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination by Section X of the New York State Public High School Athletic Association, Inc. (“NYSPHSAA”) that his son, N.S., is ineligible for interscholastic competition for the 2013-2014 school year. The appeal must be dismissed.

During the 2013-2014 school year, N.S. was a fifth-year high school senior in the Lisbon Central School District (“district” or “respondent”). According to petitioner, N.S. was required to repeat his junior year in 2012-2013 pursuant to a district policy which requires students who fail two or more subjects to repeat the grade. According to respondent, N.S. participated in varsity athletics for four consecutive years. Because N.S. repeated eleventh grade, two of his four years of competition occurred while he was an eleventh grade student (2011-2012 and 2012-2013).

Petitioner submitted a request for extended athletic eligibility, on his son’s behalf, for the 2013-2014 school year. On June 21, 2013, the NYSPHSAA Section X Eligibility Panel (“Eligibility Panel”) denied petitioner’s request, finding that N.S. had already participated in four consecutive years in an interscholastic athletic program “between the Norwood-Norfolk & Lisbon/Canton districts.” By decision dated August 1, 2013, the NYSPHSAA Section X Appeal Panel (“Appeal Panel”) upheld the determination of the Eligibility Panel. Petitioner subsequently “re-appealed” to the NYSPHSAA Section X Executive Council (“Executive Council”). By decision dated October 18, 2013, the Executive Council upheld the decision to deny eligibility. This appeal ensued. Petitioner’s request for interim relief was denied on December 2, 2013.

Petitioner seeks a determination that N.S. is entitled to participate in Section X athletics for the 2013-2014 school year. Petitioner requests an extension of N.S.’s eligibility based on “insinuating [sic] circumstances.” Specifically, petitioner contends that N.S. should be granted a fifth year of eligibility “[d]ue to illness and [a] situation beyond [N.S.’s] control,” which caused him to have to repeat his junior year.

Respondent asserts that it is not a proper party to this appeal because it made no decisions regarding N.S.’s eligibility; rather, respondent asserts that the decision from which petitioner appeals was made by the NYSPHSAA Section X Executive Council. Respondent further contends that N.S. had already participated in four consecutive years of varsity athletics.

The appeal must be dismissed because petitioner has failed to join a necessary party – NYSPHSAA Section X. 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 Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879). 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 Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879). Petitioner appeals a determination of the NYSPHSAA Section X Executive Council. The affidavit of service indicates that the petition was served only on a member of respondent board. Respondent asserts in its answer that it made no determination as to N.S.’s eligibility and petitioner did not submit a reply or otherwise refute this allegation. Section X is neither named as a party, nor was it served with the petition in this appeal. Because this appeal is from the determination of the NYSPHSAA Section X Executive Council, the rights of Section X would be affected by this decision. Accordingly, I find that Section X is a necessary party and the appeal states no claim against respondent district (see Appeal of Marson, 49 Ed Dept Rep 295, Decision No. 16,031; Appeal of LaClair, 32 id. 594, Decision No. 12,924; Appeal of Basile, 32 id. 330, Decision No. 12,844). Therefore, the appeal must be dismissed for failure to join a necessary party.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. Under §135.4(c)(7)(ii)(b)(1) of the Commissioner's regulations, a student is generally eligible for high school athletic competition during each of four consecutive seasons commencing with the student’s entry into ninth grade. While an exception exists for a student’s “failure to enter competition during one or more seasons” because of “illness, accident, or similar circumstances beyond the control of the student” (8 NYCRR §135.4[c][7][ii][b][1][i]), this exception does not apply unless the student fails to enter competition during the four-year period of eligibility.

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).

Here, petitioner appears to contend that N.S. should be granted a fifth year of eligibility pursuant to 8 NYCRR §135.4(c)(7)(ii)(b)(1)(i) because “illness and [a] situation beyond [his] control” delayed his academic, social, and mental progress and resulted in his having to repeat his junior year. In support of his claim, petitioner submitted a letter from a physician requesting that N.S. be allowed to play Section X sports activities during his senior year.1 However, based on the limited record in this case, it appears that N.S. participated in four consecutive seasons of varsity athletics, which makes the exception under §135.4(c)(7)(ii)(b)(1)(i) inapplicable (see Appeal of McMillan, 35 Ed Dept Rep 309, Decision No. 13,552; Appeal of LaClair, 32 id. 594, Decision No. 12,924). Indeed, as noted above, the Eligibility Panel found that N.S. had already participated in four consecutive years in an interscholastic athletic program “between the Norwood-Norfolk & Lisbon/Canton districts.” Petitioner generally asserts in the petition that, “[m]y son did not play four years of any high school sporting activities.” Respondent, however, denies this allegation and petitioner did not submit any evidence to support this conclusion assertion. Therefore, petitioner did not meet his burden of demonstrating that an exception to the four-year eligibility rule applies under these circumstances. While it is unfortunate that petitioner’s son was required to repeat his junior year, that is not a reason to extend his eligibility (see e.g., Appeal of McMillan, 35 Ed Dept Rep 309, Decision No. 13,552; Appeal of LaClair, 32 id. 594, Decision No. 12,924; Appeal of Basile, 32 id. 330, Decision No. 12,844). On the record before me, there is no basis to overturn Section X’s decision denying petitioner’s son an additional year of eligibility.

In light of the foregoing disposition, I need not address petitioner’s remaining contentions.

THE APPEAL IS DISMISSED.

1 I note that petitioner is not seeking a waiver pursuant to §135.4(c)(7)(ii)(d), which provides for waivers from the four-year limitation set forth in §135.4(c)(7)(ii)(b)(1) for students with disabilities participating in non-contact interschool athletic competition, under certain circumstances. Petitioner does not allege that N.S. is a student with a disability seeking extended eligibility to participate in a non-contact sport.

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