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Decision No. 18,409

Appeal of G.H., on behalf of his child, from action of Section III of the New York State Public High School Athletic Association, Inc. regarding participation in interscholastic athletics.

Decision No. 18,409

(May 16, 2024)

Bond, Schoeneck & King, PLLC, attorneys for respondent, Kate I. Reid, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals from an action of Section III of the New York State Public High School Athletic Association, Inc. (“NYSPHSAA” or “Section III”)[1] allegedly denying his child (the “student”) a transfer waiver.  The appeal must be dismissed.

Until April 2023, the student attended a nonpublic school in the West Genesee Central School District, where he played soccer and basketball.  Petitioner subsequently enrolled the student in a nonpublic school located in the Onondaga Central School District for the 2023-2024 school year. 

Petitioner claims that, on August 30, 2023, he was “officially informed of [the student’s] ineligibility to participate” in interscholastic soccer and basketball during the 2023-2024 school year due to NYSPHSAA’s transfer rule.  This rule provides that a student who transfers schools without a corresponding change in the residence of his or her parents is ineligible to participate in any interscholastic contest in a particular sport for one year if that student participated in that sport as a high school student in the year immediately preceding the transfer (see NYSPHSAA Bylaws and Eligibility Standards Rule 30; Appeal of the Bd. of Educ. of the City Sch. Dist. of the City of Buffalo, 62 Ed Dept Rep, Decision No. 18,268).

Petitioner alleges that he “inquired about submitting a transfer waiver,” and received an “official response” from the executive and assistant directors of NYSPHSAA that “the transfer waiver … would not be approved.”[2]  This appeal ensued.  Petitioner’s request for interim relief was denied on September 15, 2023. 

Petitioner requests that the student be permitted to participate in interscholastic athletics during the 2023-2024 school year via a waiver of the transfer rule.

NYSPHSAA argues that the appeal should be dismissed for lack of standing and failure to exhaust administrative remedies.  On the merits, NYSPHSAA contends that the student does not qualify for a waiver due to hardship.

The appeal must be dismissed as premature.  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).  The Commissioner’s jurisdiction pursuant to Education Law § 310 is appellate in nature, and an action is not ripe for review by the Commissioner until it is final and results in an actual, concrete injury (Appeal of Kerley, 60 Ed Dept Rep, Decision No. 17,915; Appeal of M.P., 59 id., Decision No. 17,848; Appeal of Parris, 51 id., Decision No. 16,261; see generally Matter of Gordon v Rush, 100 NY2d 236, 242 [2003]).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884). 

There is no evidence in the record that petitioner or the student’s nonpublic school applied to Section III for a transfer waiver.  While petitioner alleges that he received an “official” denial of his request for a waiver, he acknowledges that he merely “inquired about submitting” such a request.  NYSPHSAA’s executive director submits an affidavit in which he avers that he only became aware of this matter when he was served with the petition in this matter.  Petitioner did not include any evidence to support his assertions and did not submit a reply.  Additionally, there is no basis in the record to conclude that this appeal was constructively denied (see Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,445).  Thus, petitioner has failed to demonstrate that respondent made a final determination from which he could appeal.  Accordingly, the appeal must be dismissed as premature (Appeal of Lee, 58 Ed Dept Rep, Decision No. 17,506; Appeal of C.D. and A.D., 58 id., Decision No. 17,500).

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




[1] NYSPHSAA is a voluntary association of schools that provides a central organization through which students may compete in interscholastic athletics.  Section III is a subdivision of NYSPHSAA.  The school the student attended when this appeal was commenced is a member of Section III.  In addition to the provisions of Commissioner’s regulation section 135.4 governing interscholastic athletic competition, NYSPHSAA member schools are governed by NYSPHSAA’s rules.


[2][2] Petitioner also asserts that the athletic director of the nonpublic school informed him of this determination.