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Decision No. 17,549

Appeal of the BOARD OF EDUCATION OF THE GREENWOOD LAKE UNION FREE SCHOOL DISTRICT from action of the New York State Public High School Athletic Association, Section IX of the New York State Public High School Athletic Association and the Board of Education of the Warwick Valley Central School District regarding interscholastic athletics.

Decision No. 17,549

(December 7, 2018)

Lamb & Barnosky, LLP, attorneys for petitioner, Robert H. Cohen, Esq., of counsel

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

Keane & Beane, P.C., attorneys for respondent Section IX of the New York State Public High School Athletic Association, Stephanie M. Roebuck, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the New York State Public High School Athletic Association (“NYSPHSAA” or “respondent”) which upheld the denial by Section IX of NYSPHSAA (“Section IX”) of petitioner’s application to combine with the Warwick Valley Central School District (“Warwick”) for a modified middle school football program for the 2016-2017 season.  The appeal must be dismissed.

Petitioner is a kindergarten through eighth grade school district that contracts with neighboring school districts on a tuition basis for the education of its high school students pursuant to Education Law §2040.[1]  At all times relevant to this appeal, petitioner contracted with the Warwick Valley Central School District and the Chester Union Free School District for the education of its high school students.

Respondent NYSPHSAA is a voluntary association of public and non-public schools organized to provide a central association through which students may compete in interscholastic athletics.  In addition to the provisions of Commissioner’s regulation §135.4 governing interscholastic athletic competition, NYSPHSAA’s member schools are governed by NYSPHSAA’s Bylaws and Eligibility Standards (“bylaws”).

Respondent Section IX is a subdivision of NYSPHSAA and as such, has agreed to implement and abide by NYSPHSAA’s bylaws.  Both petitioner and respondent Warwick are members of Section IX and, thus, have also agreed to abide by NYSPHSAA’s bylaws.

In addition to other governance and eligibility standards, NYSPHSAA’s bylaws contain a provision whereby two or more member schools may apply to their section for permission to merge an athletic program in a specific sport.  Such requests must be renewed annually and, upon approval of the section, must be reported to NYSPHSAA.  According to the record, the bylaws do not require sections to permit the combining of teams.  However, for those sections that permit combined teams, the process and procedure is determined by the member schools of the section.  Respondent Section IX adopted such procedures for combined teams which was updated and approved by its member schools on March 11, 2016.

The Section IX “Application for Combining of Teams” requires member schools seeking to combine a team to submit an application, which includes a “Statement of Purpose” and a “Combining of Teams Request” form.  The Statement of Purpose, which is submitted to the Section IX Combining of Teams Committee, requires the host school to submit the following information related to the merger request: the sport, level(s), the name of the host school, the name of the combining school(s), the reason for combining, the number of athletes from combining schools, the experience of the athletes, the future plans or steps taken for the combining schools to develop individual programs, and any other pertinent information.

The application process requires football merger requests to be submitted by January 1st of each year.  The procedure provides that, upon receipt of a completed application, the Combining of Teams Committee reviews the documents with the Section IX chairperson for the specific sport, recommends approval or denial of the request, and presents the recommendation to the leagues within the section for a vote.  The leagues must then present such recommendation to Section IX for a vote.  If approved by Section IX, each applicant board of education must adopt a resolution to combine the teams.  Once approved by each board of education, Section IX is required to notify NYSPHSAA of the combined team.

The Section IX Application for Combining of Teams contains the following explanations for the review of merger applications:

In team sports, combining of teams applications will be supported by the Combining of Teams Committee if one team has an insufficient number of student-athletes to participate in a team contest.  Absent extenuating circumstances, the Section IX Combining of Teams Committee has an expectation of a demonstration of progress toward the establishment of an independent team.

The record indicates that petitioner and Warwick submitted an application to Section IX for a combined modified football team for the 2016-2017 season.  The application stated that the purpose of the combined team was to afford middle school students in petitioner’s district the opportunity to play modified football, which it could not offer due to its “current enrollment.”  The application further stated that petitioner’s students who later attended Warwick for high school were at an athletic disadvantage because they did not have an opportunity to play football in middle school.  In support of the application, petitioner affirmatively asserted that it would monitor the high school selection process to ensure that the merged modified football team with Warwick would not have an undue influence on its students’ decisions as to which school district they would attend for high school.

By letter dated April 19, 2016, Section IX notified petitioner that the request to combine with Warwick for modified football for the fall 2016 season was denied, citing undue influence on petitioner’s students when choosing to attend Chester or Warwick for high school. Petitioner appealed Section IX’s denial to NYSPHSAA.  By decision dated June 7, 2016, NYSPSHAA upheld Section IX’s decision to deny petitioner’s request for a merged modified football team for the 2016-2017 season.  This appeal ensued.

Petitioner contends that NYSPHSAA’s decision was arbitrary, capricious and/or not in compliance with respondent’s rules or in the best interest of petitioner’s students.  Petitioner argues that Section IX failed to comply with its own procedures and policies regarding the standard for approving a merger application.  Specifically, petitioner argues that the combining of teams policy requires the approval of an application to combine teams when one team has an insufficient number of student-athletes to field a team.

As relief, petitioner seeks an order vacating and annulling NYSPHSAA’s decision and an order directing Section IX and NYSPHSAA “to consider the application to merge Greenwood Lake with Warwick for a modified Middle School football program and any future similar merger applications in a manner consistent with the Commissioner’s decision in this Appeal.”

Respondent NYSPHSAA asserts that petitioner has failed to meet its burden of demonstrating a clear and legal right to the relief requested.  Specifically, respondent NYSPHSAA asserts that, as a member of both Section IX and NYSPHSAA, petitioner agreed to abide by all of the rules adopted by NYSPHSAA and Section IX.  NYSPHSAA further asserts that the decision to uphold Section IX’s denial of the merger was consistent with the rules against recruitment and undue influence applicable to all member schools and sections and was, therefore, reasonable.  Furthermore, NYSPHSAA asserts that, because Section IX’s procedures for combining teams require applications therefor to be submitted and evaluated on a yearly basis, the appeal is moot.

Section IX asserts that all NYSPHSAA member schools must abide by NYSPHSAA’s bylaws governing interscholastic athletics.  Those bylaws, argue Section IX, permit sections to establish a procedure to receive requests for the combining of teams and also include provisions relating to recruitment and undue influence.  Section IX asserts that, because all conduct of the section and member schools must comply with the bylaws, NYSPHSAA’s determination upholding Section IX’s denial of petitioner’s merger request on the basis of improper influence was proper and petitioner has failed to state a cause of action upon which relief may be granted.[2]

To the extent that petitioner challenges the denial of its application for a combined modified football team for the 2016-2017 season, the appeal must be dismissed as moot.  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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Martin, 38 id. 130, Decision No. 14,000).The record indicates that applications to field a combined team for an upcoming season in a specific sport must be submitted and reviewed annually.  The football season at issue has concluded and any proposal to field a combined team in the future would require a new application for review in light of the facts and circumstances present at the time.  Therefore, the appeal is moot and must be dismissed.

Petitioner, nevertheless, contends that respondent’s denial of the merger application is not moot because it is capable of repetition, yet evading review.  Petitioner further asserts that this issue is important to Greenwood Lake students, relates to a concern of public interest and is “likely to recur as Greenwood Lake seeks out this cost-effective avenue to allow its seventh and eighth grade students to play organized football each year.”

Initially, I do not agree that the instant situation is capable of repetition yet evading review or presents a matter of statewide public interest.  As indicated above, combination requests are submitted annually and evaluated based on the specific information indicated therein.  Petitioner has not established on this record that it will need to or will submit the same request each year, that its circumstances will remain the same including its ability to field a team, that it will continue to contract with the same school districts, or that NYSPHSAA will continually deny all future requests on the same grounds.  Further, although Commissioner’s regulations provide a mechanism for seeking interim relief, (8 NYCRR §276.1), petitioner did not avail itself of that review process (see Kowalczyk, et al.v. Town of Amsterdam Zoning Bd. Of Appeals, 95 AD3d 1475).

Finally, other than a conclusory assertion, petitioner has not explained how resolution of this dispute would address a matter of statewide public interest nor does it identify a novel issue of public interest (Kowalczyk v. Town of Amsterdam Zoning Bd. of Appeals, 95 AD3d 1475).  Therefore, I find that the matter is moot and that no exception to this doctrine applies under the circumstances (Kowalczyk v. Town of Amsterdam Zoning Bd. of Appeals, 95 AD3d 1475; cf. Pena v. NYSPHSAA, Inc., 118 AD3d 1456).

Finally, I note that, subsequent to the initiation of this appeal, the Board of Regents amended Commissioner’s regulation §135.4(c)(7)(ii)(a) to expand the opportunities for participation in interscholastic athletics at the high school level for student-athletes who attend school districts that serve only students in kindergarten through eighth grade, such as petitioner.[3]  Pursuant to the amended regulation, student-athletes attending seventh or eighth grade in a school district serving only kindergarten through eighth grade, such as petitioner, now have the opportunity to participate on a high school team in a neighboring school district, with conditions not relevant to this appeal.  This provides an additional option to facilitate student-athlete participation in athletics.

Finally, the Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of Frey, 57 Ed Dept Rep, Decision No. 17,308; Appeal of B.R. and M.R., 48 id. 291, Decision No. 15,861).  Therefore, to the extent petitioner seeks a determination on the merits of the merger request for years beyond the 2016-2017 season, such request is premature.

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




[1] Education Law §2040 provides that school districts may “contract for a period of not less than two and not more than five years for the education of all the high school pupils of grades seven to twelve, inclusive, of such district in another school district in this state or in an adjoining state, instead of maintaining a home high school for such grades.” 


[2] Though named as a respondent in the caption of this appeal and served with a copy of the petition, Warwick did not appear or submit an answer.