Decision No. 17,021
* Subsequent History: Matter of Caruso v Elia; Supreme Court, Albany County; Decision and Order dismissed petition to review; October 31, 2017. *
Appeal of GINA CARUSO, on behalf of her son JORDAN, from action of the New York State Association of Independent Schools regarding participation in interscholastic athletics.
Decision No. 17,021
(December 28, 2016)
The Luthmann Law Firm, PLLC, attorneys for petitioner, Richard A. Luthmann, Esq., of counsel
Schulte Roth and Zabel, LLP, attorneys for respondent, Michael E. Swartz, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals a determination of the New York State Association of Independent Schools (“NYSAIS”) that her son, Jordan, is not eligible to participate in interscholastic sports as a member of Staten Island Academy’s varsity basketball team for the 2016-2017 season. The appeal must be dismissed.
The record indicates that respondent NYSAIS is an association of nonpublic schools in New York State. Interscholastic athletic competition of NYSAIS member schools is overseen and facilitated by the NYSAIS Athletic Association (“NYSAISAA”).
Petitioner’s son is a senior at Staten Island Academy (“the Academy”), a nonpublic school that is a member of NYSAIS. The record indicates that, in addition to being a NYSAIS member, the Academy is also one of a subset of NYSAIS schools that has committed to comply with Part 135 of the Commissioner’s regulations, as it pertains to interscholastic athletics, in order to compete against public schools in other athletic associations, such as the Public School Athletic League and the New York State Public High School Athletic Association. The record further indicates that nonpublic schools that make such a commitment to enable the competition against public schools are considered to be members of the “Federation List of Schools” (the “Federation List”). In agreeing to comply with the Commissioner’s regulations as a condition of Federation List competition, the Academy has subjected itself to these rules and my interpretation and application thereof.
The record indicates that, during the 2012-2013 school year, the student attended 9th grade at St. Peter’s Boys High School (“St. Peter’s”) in Staten Island. During the time he attended St. Peter’s, he was a member of its freshman basketball team. The record indicates that Jordan suffered a knee injury at some point during the season. The student subsequently left St. Peter’s and, at some point thereafter, transferred to Staten Island Academy. He repeated 9th grade at the Academy in the 2013-2014 school year. The record further indicates that the student continued to participate in interscholastic athletics as a member of the Academy’s basketball team during the 2014-2015 and 2015-2016 school years. The Academy sought a waiver from NYSAISAA for a fifth year of athletic eligibility for the student during the 2016-2017 basketball season.
The Academy’s request for an extension of athletic eligibility on behalf of the student was based on his alleged partial participation in the 2012-2013 school year. Although the initial decision letter of the Athletic Executive Committee (“AEC”) was not submitted, the record indicates that the AEC denied the Academy’s waiver request. NYSAISAA’s appeal process permits an appeal of a decision by the AEC to the executive director of NYSAIS. The Academy appealed the AEC’s denial of the waiver and, by letter dated January 9, 2016, the executive director of NYSAIS wrote to the Academy indicating that the decision of the AEC denying the student’s request for eligibility extension for a fifth year of competition in the 2016-2017 school year was upheld.
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....
The regulation further provides for an extension of athletic eligibility 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 or accident, such pupil's eligibility shall be extended accordingly in that sport....
The regulation further provides:
In order to be deemed sufficient, the evidence must include documentation showing that as a direct result of the illness or accident, 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 the 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 (Appeal of N.M., Sr., 55 Ed Dept Rep, Decision No. 16,846).
Respondent’s January 9, 2016 letter denying the Academy’s appeal noted that, subsequent to the initial letter of appeal, a letter from the coach of St. Peter’s basketball team was submitted. The letter stated that the student “did play minimally that season due to injuries, sickness, and vacation with family, which caused him to miss numerous practices” during the 2012-2013 season. Respondent considered the letter but found that, “[i]n order for the AEC to reconsider [the student’s eligibility extension] and grant a medical exemption, a player must have clear documentation from the school that he missed over 50% of the games, due to verified illness, in a given season.” Respondent stated that it was not clear how many games that Jordan “suited up” to play during the 2012-2013 season.
Respondent further informed the Academy that, while extended eligibility may be granted “for documented medical problems that cause a student not to participate in an athletic season due to loss of school time, eligibility extensions are not provided for students who repeat a grade for academic or admissions reasons.”
By letter dated February 3, 2016, it appears that petitioner’s attorney sought reconsideration of respondent’s denial of the request for an eligibility extension. Petitioner addressed the underlying facts relating to the student’s actual level of participation on the St. Peter’s basketball team in the 2012-2013 school year and asserted that the student participated in “zero percent” of the regularly scheduled games during the 2012-2013 school year. Petitioner further asserted that on December 5, 2012, prior to the first scheduled game, the student injured his knee, which made it impossible for him to play basketball during the 2012-2013 season. Petitioner again submitted the letter from St. Peter’s head coach indicating that the student “did play minimally that season, due to injuries, sickness, and vacation with family, which caused him to miss numerous practices. To the best of my knowledge and memory, Jordan played less than 10 minutes the entire season.” Petitioner also submitted two inconsistent schedules for the 2012-2013 basketball season, with different dates indicating the start of the season, and another letter from the coach stating that Jordan “suited up in uniform for no more than 5 of our 24 games.”
In addition to addressing the percentage of time that Jordan played during the 2012-2013 basketball season, documentation was submitted from a medical provider, dated January 15, 2013, indicating that Jordan had suffered a knee sprain and that, according to the student, the injury was incurred while playing basketball on January 12, 2013. The letter also indicated that the physician had evaluated Jordan on December 5, 2012 for anterior knee pain. While the record is unclear as to the official start of the basketball season, it is clear that the student’s January 12, 2013 injury, apparently incurred while playing basketball, occurred within the timeframe of the 2012-2013 basketball season.
By letter dated June 13, 2016, respondent again denied the student extended eligibility in the 2016-2017 school year. In that letter, respondent agreed that the documentation supported a finding that Jordan did not play in over 50 percent of the St. Peter’s basketball games during the 2012-2013 season. However, respondent noted that an extension of eligibility is permitted if there is clear documentation from the school that the student did not participate in more than 50 percent of the games in the season due to a verified illness or injury. Respondent went on to conclude that, based on the documentation and the statement from the coach that Jordan played minimally “due to injuries, sickness, and vacation with family,” the request was denied because there was not adequate documentation that the student was ineligible to play due to a verified illness or injury. Respondent stated that “[i]f [Jordan] did not play because he was a freshman, failed to attend practice, was on vacation with his family, was sick with the flu, etc., these games still count when determining eligibility.” Respondent determined that the evidence did not establish that a verified illness or injury caused Jordan to be ineligible to play more than 50 percent of the games in his freshman season.
Petitioner appealed respondent’s decision to Supreme Court, Richmond County. By decision dated October 28, 2016, the court dismissed that appeal for failure to exhaust administrative remedies. This appeal ensued.
Petitioner asserts that respondent’s denial of extended eligibility is arbitrary and capricious. The petition focuses on the percentage of time that Jordan participated in basketball during the 2012-2013 season and claims that respondent applied an incorrect standard of proof in determining that issue. She seeks a determination that Jordan is eligible to play basketball for the Academy in the 2016-2017 school year.
Respondent contends that petitioner’s appeal is untimely, and that petitioner has failed to meet her burden of proof.
I must first address the procedural issues. 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). However, in circumstances similar to those presented here, where a petitioner has first commenced an action in the courts which has been dismissed on some basis not involving the merits, the date of dismissal is generally regarded as the equivalent of the date of the "making of the decision or the performance of the act complained of" in §275.16 of the Commissioner’s regulations. Previous decisions have allowed an appeal to the Commissioner within 30 days after such dismissal (Matter of McClure Hessney, 37 Ed Dept Rep 366, Decision No. 13,881; Matter of Buffalo Teachers Federation, Inc., 23 id. 230, Decision No. 11,197; Matter of Van Druff, 21 id. 635, Decision No. 10,816).
Here, respondent afforded petitioner two opportunities to internally appeal the AEC’s eligibility decision. In its January 9, 2016 decision, respondent indicated that it was unable to conclude that Jordan had not played more than 50 percent of the 2012-2013 basketball season. Thereafter, respondent entertained petitioner’s additional submissions and issued its June 13, 2016 decision. In that decision, while respondent agreed that Jordan had not played for more than 50 percent of the 2012-2013 basketball season, it nevertheless determined that it could not conclude that his failure to play was due to accident or illness.
According to the record, on September 8, 2016, petitioner initiated an appeal to Supreme Court, Richmond County. By order dated October 28, 2016, petitioner’s action in Supreme Court was dismissed for failure to exhaust administrative remedies. This appeal was commenced on November 18, 2016. As the instant appeal was commenced within 30 days after the dismissal of the Article 78 proceeding, I decline to dismiss it as untimely.
Next, I note that petitioner requests discovery in this appeal. An appeal to the Commissioner is appellate in nature and there is no provision permitting discovery in the Regulations of the Commissioner governing the practice in such appeals.
Turning to the merits, on this record, I find that petitioner has failed to establish the required nexus between the student’s injury and his failure to enter competition, nor has she demonstrated that, as a result of the injury, the student was required to attend school for additional time in order to graduate (8 NYCRR §135.4 [c][ii][b]).
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). As noted above, Commissioner’s regulations set forth 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 (Appeal of N.M., Sr., 55 Ed Dept Rep, Decision No. 16,846).
I note that the petition primarily addresses the number of games and level of Jordan’s participation during the 2012-2013 basketball season, challenging the standard of proof applied by respondent in concluding that petitioner had not demonstrated that Jordan failed to play in more than 50 percent of the games. However, I further note that, in its June 13, 2016 decision, respondent conceded that point, finding that the record at that juncture did establish that Jordan had not played in more than 50 percent of the games. Petitioner’s arguments on that issue are, therefore, academic.
While the record indicates that Jordan suffered a knee injury in December 2012, and in January 2013, while playing basketball, the record contains inconsistent evidence as to the reason for Jordan’s limited participation in the sport during the 2012-2013 season. Specifically, the letter from the coach of St. Peter’s basketball team attributes his minimal participation not only to injury, but also to sickness and vacations with family. The record is also devoid of any evidence demonstrating that the student’s knee injury both prohibited him from entering competition in the 2012-2013 school year and caused him to require additional time to graduate (8 NYCRR §135.4[c][ii][b]). Indeed, the petition does not contain any proof or even an allegation that Jordan’s 2012-2013 knee injury caused him to require additional time to graduate.
Therefore, on this record, I find that petitioner has not established that the student’s knee injury caused him to fail to enter competition in 2012-2013 nor that, as a direct result of the injury, he was required to attend school for additional time in order to graduate (see Appeal of N.M., Sr., 55 Ed Dept Rep. Decision No. 16,846). Consequently, I do not find that respondent’s determination that Jordan is ineligible for a fifth year of competition is arbitrary, capricious or contrary to law and I decline to overturn such determination.
In light of this disposition, I need not address the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE
 Although the record is not clear, it appears that the Academy sought the 2016-2017 waiver sometime prior to the fall of 2015.
 I note that the January 9, 2016 letter refers to the first year of extended eligibility as the 2015-2016 school year. However, the parties agree that this was a typographical error and the year at issue is the 2016-2017 school year.
 The record indicates that the NYSAISAA guidelines consider a student not to have entered competition when such student participates in fewer than 50 percent of the scheduled games or contests. However, as a member of the Federation List, the Academy has agreed to abide by the Regulations of the Commissioner which state that 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” (8 NYCRR §135.4[c][ii][b]; see e.g., Appeal of the Bd. of Educ. of the Spencerport Central School District, et al., 36 Ed Dept Rep 49, Decision No. 13,651; Appeal of Duane, 35 id. 277, Decision No. 13,540; Appeal of Bd. of Educ. of the Phelps-Clifton Springs Central School District, 34 id. 108, Decision No. 13,248). However, I need not address this issue in light of my finding herein that petitioner failed to carry her burden of establishing the required nexus between the student’s injury and his failure to enter competition and that, as a result of his injury, the student was required to attend school for additional time in order to graduate.
 The June 13, 2016 letter refers to a letter from the Academy dated May 16, 2016 “resubmitting a request for a second appeal” regarding the request for Jordan’s extended eligibility in 2016-2017. However, neither party has submitted that letter in this appeal.