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Decision No. 16,846

Appeal of N.M., SR., on behalf of his son N.M., from action of the New York State Public High School Athletic Association, Inc., regarding eligibility to participate in interscholastic athletics.

Decision No. 16,846

(November 2, 2015)

Matthew J. Turner, P.C., attorneys for petitioner, Matthew J. Turner, Esq., of counsel

Renee L. James, Esq., attorney for respondent

ELIA, Commissioner.--Petitioner appeals the determination of the New York State Public High School Athletic Association, Inc. (“respondent”) that his son, N.M., is not eligible to participate in interscholastic football during the fall 2013 season.  The appeal must be dismissed.

Petitioner’s son is a high school student in the Enlarged City School District of Troy (“Troy High School”).  Petitioner’s son was born on November 6, 1994, and he was supposed to graduate high school at the end of the 2012-2013 school year; however, because of an injury he sustained playing football during the 2011-2012 school year, he did not graduate on time.  Therefore, the 2013-2014 school year was his fifth year of high school.

Petitioner alleges that, upon entering high school as a freshman in the 2009-2010 school year, N.M. was diagnosed with a condition that prevented his chest plates from growing properly.  Petitioner claims that this condition prevented N.M. from playing football during his freshman year.  Notably, however, this condition - for which the record contains no medical documentation - did not prevent N.M. from completing his freshman year academically.  Petitioner states that, at the beginning of N.M.’s sophomore year, he was “cleared to play football” and fully participated as a member of the football team during his sophomore season. 

At the first pre-season scrimmage of his junior year in the 2011-2012 school year, N.M. sustained a large turf burn and back injury.  He was diagnosed with back spasms and sciatica, which were treated with a prescription painkiller.  Significantly, N.M. then continued to play and participated in the first three football games of his junior year.  The pain and symptoms, however, worsened each week and he was ultimately diagnosed with a methicillin-resistant staphylococcus aureus (“MRSA”) infection.  As a result, he did not play in any more football games his junior year.  The infection was serious enough that N.M. was forced to take a truncated schedule of classes, resulting in his inability to graduate within four years.  Rather than completing the requirements for a high school diploma, N.M. elected to return to high school for a fifth year in the 2013-2014 school year. 

In March 2013, Troy High School applied to respondent on behalf of N.M. seeking an extra year of eligibility to play high school football.  By letter dated April 29, 2013, respondent’s Section II Eligibility Committee denied the request because N.M. had participated in games during his junior year.  Petitioner then appealed to respondent’s Appeal Panel, which upheld the denial as consistent with the Commissioner’s regulations.[1]  This appeal ensued.  Petitioner’s request for interim relief was denied on September 16, 2013.

Petitioner contends that as a result of N.M.’s two medical issues - the chest plate condition which allegedly prevented N.M. from playing football during his freshman year and the misdiagnosed MRSA infection which caused him to miss the remainder of the season during his junior year – N.M. has only played two years of high school football and, therefore, an extra year of eligibility is warranted. 

Respondent notes that petitioner raises for the first time in this appeal the argument that his son failed to enter competition during his freshman year because of an issue with his chest plates.  Regardless, respondent argues that its decision was proper because, under the governing Commissioner’s regulation, neither the alleged chest condition nor the MRSA infection would warrant an extra year of eligibility on the facts presented.

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).  Petitioner’s request for interim relief pending a determination on the merits of this appeal was denied on September 16, 2013.  Since the 2013 football season has now concluded, the appeal must be dismissed as moot (Appeal of Santorio, 51 Ed Dept Rep, Decision No. 16,323).

Even if the appeal were not dismissed as moot, it would be dismissed on the merits. Section 135.4(c)(7)(ii)(b)(1) of the Commissioner's regulations (the “regulation”) governs student participation in interscholastic sports and provides in pertinent part:

(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... A Pupil enters competition in a given year when the pupil is a member of the team in the sport involved, and that team has completed at least one contest....

At all times relevant to this appeal, the regulation further provided for a medical exception as follows:

The eligibility for competition of a pupil who has not attained the age of 19 years prior to July 1st may be extended under the following circumstances:

(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....

According to the regulation in effect at all times relevant to this appeal:

In order to be deemed sufficient, the evidence must include documentation showing that as a direct result of the illness, accident or other circumstance beyond the control of the student, the pupil will be required to attend school for one or more additional semesters in order to graduate.

Thus, the regulation presents a two pronged test for extended eligibility in case of injury or illness: (1) the student must not have entered competition in the subject sport; and (2) the injury or illness which caused the student to not enter competition must have also caused the student to require additional time to graduate.

Upon review of the record, I find that petitioner has not satisfied either prong regarding the alleged chest plate condition.  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).  The record does not contain any medical evidence documenting this injury aside from petitioner’s allegations, nor is there any evidence demonstrating that this alleged chest injury caused N.M. to require additional time to graduate (8 NYCRR §135.4 [c][7][ii][b][1]).

Turning to the MRSA infection, petitioner cannot satisfy the first prong of the regulation’s test because N.M. did in fact “enter competition” during his junior year, as he participated in three football games that season.  Although I am sympathetic to N.M.’s situation, the regulation has been strictly applied in prior appeals before the Commissioner.  Where a student stopped playing football after only one game as the result of injuries sustained in an automobile accident, it was held that the student had “entered competition” for the purposes of the regulation and extended eligibility was denied (Appeal of Duane, 35 Ed Dept Rep 277, Decision No. 13,540), and a student who participated in only 169 of a possible 2,000 minutes in a soccer season was found to have “entered competition” and not granted an extra year of eligibility (Appeal of the Board of Education of the Spencerport Central School District, et al., 36 Ed Dept Rep 49, Decision No. 13,651).  Similarly, N.M.’s participation in the three games during the 2011-2012 school year constitutes “entering competition” in that school year and he was therefore not eligible for extended eligibility to play football.   

In light of the regulation and this precedent, on this record I cannot find that respondent’s decision denying N.M. an extra year of eligibility to play high school football was improper.




[1] Petitioner’s papers do not include the decision of respondent’s Appeal Panel, but respondent’s papers include copies, one dated August 9, 2013, and one dated August 12, 2013.