In this Special Proceeding pursuant to Article 78 CPLR, petitioner seeks to overturn the decision of Section VIII of the New York State Public High School Athletic Association to delay the start of high school athletics in Nassau County. Background NYSPHSAA is a not for profit entity authorized by the NYS Commissioner of Education to regulate high school athletic activities. There are six regional sections under the aegis of the NYSPHSAA. Section VIII regulates athletic activities in Nassau County. On August 15, 2020 the NYS Department of Health issued its Interim Guidelines for Sports and Recreation During the Covid-19 Public Health Emergency. This extensive regulatory program included the following classification of sports activities into categories of Lower Risk, Moderate Risk and High Risk Activities: Lower risk sports and recreation activities are characterized by: Greatest ability to maintain physical distance and/or be performed individually; Greatest ability to (1) avoid touching of shared equipment, (2) clean and disinfect any equipment between uses by different individuals, or (3) not use shared equipment at all; and Examples of lower risk sports and recreation activities include:1 individual running, batting cages, hunting/shooting/archery, golf, singles tennis, individual swimming, individual crew, cross country running, bowling, and other sports and recreation activities with similar abilities to maintain physical distance and/or limit exposure to shared equipment prior to such equipment being cleaned and disinfected. Moderate risk sports and recreation activities are characterized by: Limited ability to maintain physical distance and/or be done individually; Limited ability to: (1) avoid touching of shared equipment, (2) clean and disinfect equipment between uses by different individuals, or (3) not use shared equipment at all; and Examples of moderate risk sports and recreation activities include:2 baseball, softball, doubles tennis, racket games, such as badminton, racquetball, water polo, gymnastics, field hockey, non-contact lacrosse, flag football, swimming relays, soccer, crew with two or more rowers in shell, other sports and recreation activities with similar abilities to maintain physical distance and/or limit exposure to shared equipment prior to such equipment being cleaned and disinfected. On August 24, 2020, Governor Cuomo announced that lower risk school sports could begin on September 21, 2020. “Governor Andrew M. Cuomo today announced lower-risk, school-sponsored sports in all regions may begin to practice and play beginning September 21st. However, travel for practice or play will be prohibited outside of the school’s region or contiguous regions orcounties until October 19th. For the fall sports season, lower — and moderate-risk sports include tennis, soccer, cross country, field hockey and swimming.” (emphasis supplied).3 On August 27, 2020 Section VIII issued a release stating, “Out of an abundance of caution for the health and safety of our students, coaches and staff, Section VIII issued a statement that we would delay the start of fall athletics.” This statement was based upon a determination of the Section VIII Superintendents’ Board. On September 9, 2020 Petitioner brought the instant proceeding seeking to set aside that determination. On September 17, 2020 (one day prior to the original return date of this action) the Athletic Council of Section VIII held a virtual meeting (via Zoom). The meeting was recorded, but due to a technical error only a portion of the recording is available4. Written minutes were taken. The pertinent part of the minutes are set forth below: Discussion followed on how the superintendents board made the decision to delay the start of Fall sports. The decision was based upon many levels including inconsistency in the physical education guidance of 12′ vs 6′ for social distancing in the athletic guidance, transportation issues, locker room issues, financial impact of 20 percent state aid withholding from the school budgets, districts ability to represent in athletics given financial restraints, etc. A letter was sent and received back from the State Superintendents Committee expressing concerns over the opening of athletics in the Fall. The delay in opening would allow districts to collect data on Covid-19 cases, see how other parts of the state reopening athletics are, and focus on the reopening strategies that were part of district plans to open schools. Currently, Section XI has joined to delay the start of athletics on Long Island. Superintendents in the meeting expressed school board communications, fiscal resources available to all districts, and the need to focus all efforts to reopening strategies while keeping all students safe were of paramount importance. Several athletic administrators thanked the superintendents board for taking the burden off their backs and showing strong leadership in moving forward during these unpredictable times of Covid-19. Pat set a timeline for the Sport Season committee, the high school association, and the athletic council to meet and vote on the calendar moving forward to include all sports with little to no overlap with the possibility of Long Island Championships were possible. A motion was made by Jennifer Keane, “To postpone the Fall 2020 season to be held after January 4, 2021.” Approved by John Mankowich and seconded by Chris Ceruti. Approved 12-2 The partial recording of the virtual meeting does not contain the discussion that preceded the resolution or the roll call vote. Position of the Parties Petitioner contends that under the Section VIII Constitution a referendum among all member schools was required in order to delay the fall sports season. Because such a referendum was not conducted it is petitioner’s position that the decision to delay the fall season is invalid. The initial petition addressed the statement of the Superintendents’ Board. The petition did not address the action of the Athletic Council and could not because the action was taken subsequent to the filing of the petition. However, that issue was addressed in oral argument conducted on September 18, 2020. Petitioner asserted that the action of the Athletic Council, like the earlier action of the Superintendents’ Board violated the Section XIII Constitution because no referendum was held. Petitioner submitted in the alternative that even if these actions of the Board and Council were not ultra vires, the actions were arbitrary and capricious and must be set aside for that reason. Respondent contends that the actions of both the Superintendents’ Board and Athletic Council are authorized under the Section VIII constitution. Respondent further contends that the petition must be dismissed because petitioner failed to exhaust its administrative remedies by not appealing the respective decisions of the Board and Council. Finally, respondent contends that the decision was not arbitrary and capricious. Discussion Compliance with Section VIII Constitution The Section VIII Constitution regulates the conduct of its business. Under that constitution certain boards and committees are created and their powers and duties enumerated. Article V. of the Section VIII Constitution establishes the Superintendents’ Board. The article states: The powers and duties of the Superintendents’ Board are to: 1. Approve the annual Section VIII budget at the January meeting. If significant changes are made in any budget area, these will be immediately referred back to the Budget Committee of the Athletic Council so that final action on the budget is taken before the end of January. 2. Approve and supervise the annual fee structure. 3. Approve contract [sic] with officials. 4. The Board shall select a member of the Nassau County Council of School Superintendents to serve as chairperson and chief negotiator for the Officials’ Coordinating Council when officials contracts are negotiated. 5. Supervise, evaluate and set the annual salary for the Executive Director, in conjunction with the Executive Committee of the Athletic Council. 6. Serve as the last resort in appeals relating to budget matters and the administration of Section VIII policies. Nothing contained in Article v. specifically authorizes the Superintendents’ Board to set or reschedule athletic seasons. Respondents argue that the authority is inherent in the Board’s power to “Serve as the last resort in appeals relating to budget matters and the administration of Section VIII policies.” The undersigned disagrees. In issuing its statement of August 27, 2020, the Board was not considering an appeal of policy, rather it was initiating policy. Article v. of the Section VIII Constitution does not grant that authority to the Superintendents’ Board. The statement of September 27, 2020 can at best be considered advisory. Article VI of the Section VIII Constitution establishes the Athletic Council. Among the powers granted to that council are the approval of policy for Section VIII5; the approval and supervision of sectional athletic activities6; and the approval of a yearly calendar coordinating all athletic activities7. Petitioner argues that these powers granted to the Council under Article v. do not authorize the Council to reschedule the fall sports season, because Article v. is superseded by Article XIV (subsection 1), which states, “On issues which have major implications for member schools, such as extensive realignment, acceptance of Friends and Neighbors as members, etc. the Athletic Council will conduct an electronic post card vote to be distributed by the Office of the Executive Director.” The issue is whether the delay interscholastic fall sports constitutes an issue having “major implications for member schools”. Petitioner submits that the decision to delay the fall sports season has such major implications. “Effectively cancelling the fall sports season and postponing interscholastic athletics until at least January 2021 poses significant harm to the mental, emotional and physical well-being of students who are denied the opportunity to participate in sports. It also places many of these Section VIII scholar athletes at a competitive disadvantage in gaining college admission and securing scholarships because they will be unable, in comparison to their peers elsewhere in New York State, to present a full record of athletic achievement in advance of their college admission.” (Petition, 41). Respondent argues that the decision does not rise to the level of having major implications. In support of that position respondent submitted the affidavit of its Executive Director, in which he avers, “In my 30 years of overall involvement as a member of the Council in some capacity, there has [sic] been only two situations where the Council has voted by Referendum pursuant to Article XIV of the Section VIII Constitution, and one was a situation involving admission of private schools into Section VIII and the other was changing the voting membership of the High School Association.” (Pizzarelli affidavit, 13.) There is merit to petitioner’s argument that the four month delay of the sports season due to the Covid pandemic is of greater significance than the annual sports schedule that the Athletics Council is empowered to set. There is also merit to respondent’s argument that while this decision affected all of the members of Section VIII, it is temporal — the season was delayed, not canceled — and therefore within the scheduling authority of the Council. The Section VIII Constitution does not set forth any method of determining whether an issue is of major implication to the members. Historically, that decision was made by the Superintendents’ Board (Grishman affidavit, 8). In determining whether the decision to delay the start of the season had serious implications it is noteworthy that all 57 member schools of Section VIII were named as parties to the proceeding and served with process. Other than petitioner, none of the member schools appeared. “‘An administrative agency’s construction and interpretation of its own regulations and of statute under which it functions is entitled to greatest weight (Matter of Herzog v. Joy, 74 A.D.2d 372, 375, 428 N.Y.S.2d 1, citations omitted.)’” Tommy and Tina Inc. v. Department of Consumer Affairs of City of New York (1 Dept. 1983) 95 A.D.2d 724, 464 N.Y.S.2d 132, affirmed 62 N.Y.2d 671, 476 N.Y.S.2d 290, 464 N.E.2d 988. Inherent in the convening of the Athletic Council is the decision by the Superintendents’ Board that the Council had the authority to modify the athletic schedule without a vote of the full membership. Reaching that decision required interpretation of the internal regulations of the Section VIII Constitution. There is no reason to disturb that interpretation. The decision of the Athletic Council did not violate the Section VIII Constitution. Failure to Exhaust Administrative Remedies Respondent submits that the petition must be dismissed because the decision of the Athletic Council could have been appealed to NYPHSAA. Section 3(c ) of the NYPHSAA By-Laws states, “An appeal from the decision of the [Sectional] Athletic Council may be taken to the Appeal Panel of the NYSPHSAA, Inc., which shall review the evidence, may hear arguments, and shall have the power to affirm, reverse, or modify the decision of the Athletic Council.” (See, Suburban Scholastic Council v. Section 2 Of New York State Pub. High Sch.Athletic Ass’n., Inc., 23 A.D.3d 728, 803 N.Y.S.2d 270 [3rd Dept. 2005]). Respondent further submits that petitioner could have appealed to the Superintendents’ Committee which is empowered to act “as the last resort in appeals relating to…the administration of Section VIII policies.”8 Section 7801 of the CPLR states: …Except where otherwise provided by law, a proceeding under this article shall not be used to challenge a determination: 1. which is not final or can be adequately reviewed by appeal to a court or to some other body or officer or where the body or officer making the determination is expressly authorized by statute to rehear the matter upon the petitioner’s application unless the determination to be reviewed was made upon a rehearing, or a rehearing has been denied, or the time within which the petitioner can procure a rehearing has elapsed… “The doctrine of exhaustion of administrative remedies requires ‘litigants to address their complaints initially to administrative tribunals, rather than to the courts, and to exhaust all possibilities of obtaining relief through administrative channels before appealing to the courts” (Young Men’s Christian Ass’n v. Rochester Pure Waters Dist., 37 N.Y.2d 371, 372 N.Y.S.2d 633, 334 N.E.2d 586 [1975] [citing 2 Cooper, State Administrative Law, p. 561]). “Generally, one who objects to act of administrative agency must exhaust available administrative remedies before being permitted to litigate in court of law, but exhaustion of administrative remedies is not required if agency’s action is challenged as beyond its grant of power or when resort to administrative remedy would be futile.” Lehigh Portland Cement Co. v. New York State Dept. of Environmental Conservation, 1995, 87 N.Y.2d 136, 638 N.Y.S.2d 388, 661 N.E.2d 961 (see also Watergate II Apartments v. Buffalo Sewer Authority, 1978, 46 N.Y.2d 52, 412 N.Y.S.2d 821, 385 N.E.2d 560 [1978]). Since the Athletic Council acted within the scope of its lawful authority, petitioner was required to exhaust its administrative remedies. It did not do so. Arbitrary and Capricious Standard Exhaustion of administrative remedies by petitioner was a condition precedent to commencing the instant proceeding. However, in order to create a complete record the court has assumed arguendo that the exhaustion of administrative remedies was not required and now considers whether the decision of the Athletic Council was arbitrary and capricious. In Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, (1974) Judge Stevens set forth the following criteria to be applied in judicial review of an administrative proceeding: In article 78 proceedings, “the doctrine is well settled, that neither the Appellate Division nor the Court of Appeals has power to upset the determination of an administrative tribunal on a question of fact; ‘the courts have no right to review the facts generally as to weight of evidence, beyond seeing to it that there is “substantial evidence.”‘” (Cohen and Karger, Powers of the New York Court of Appeals, §108, p. 460; 1 N. Y. Jur., Administrative Law, §§177, 185; see Matter of Halloran v. Kirwan, 28 NY2d 689, 690 [dissenting opn. of Breitel, J.]). “The approach is the same when the issue concerns the exercise of discretion by the administrative tribunal: The courts cannot interfere unless there is no rational basis for the exercise of discretion or the action complained of is ‘arbitrary and capricious.’” (Cohen and Karger, Powers of the New York Court of Appeals, pp. 460-461; see, also, 8 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 7803.04 et seq.; 1 N. Y. Jur., Administrative Law, §§177, 184; Matter of Colton v. Berman, 21 NY2d 322, 329). The arbitrary or capricious test chiefly “relates to whether a particular action should have been taken or is justified and whether the administrative action is without foundation in fact.” (1 N. Y. Jur., Administrative Law, §184, p. 609). Arbitrary action is without sound basis in reason and is generally taken without regard to the facts. In Matter of Colton v. Berman (supra, p. 329) this court (per Breitel, J.) said “the proper test is whether there is a rational basis for the administrative orders, the review not being of determinations made after quasi-judicial hearings required by statute or law.” (Emphasis supplied.) Where, however, a hearing is held, the determination must be supported by substantial evidence (CPLR 7803, subd. 4); and where a determination is made and the person acting has not acted in excess of his jurisdiction, in violation of lawful procedure, arbitrarily, or in abuse of his discretionary power, including discretion as to the penalty imposed, the courts have no alternative but to confirm his determination (CPLR 7803, subd. 3; Matter of Procaccino v. Stewart, 25 NY2d 301; but see Matter of Picconi v. Lowery, 35 A D 2d 693, affd. 28 NY2d 962). Rationality is what is reviewed under both the substantial evidence rule and the arbitrary and capricious standard. (Matter of 125 Bar Corp. v. State Liq. Auth., 24 NY2d 174, 178; 1 N. Y. Jur, Administrative Law, §184). The truncated recording of the September 27, 2020 virtual meeting of the Athletic Council does not contain any discussion about delaying the season or the actual vote. If there were no other evidence about the decision making process, judicial review of the decision would be futile and the matter remanded to the Athletic Council. However, the minutes of the meeting (supra.) describe the deliberation of the Council. Those minutes state that the Council considered relevant factors, which included: inconsistencies promulgated by various agencies with respect to social distancing guidelines for athletics; transportation issues created by the pandemic; having the opportunity [by delaying the start of the season] to collect further data on Covid-19; the fiscal impact of following Covid-19 safety protocols; and “the need to focus all efforts to reopening strategies while keeping all students safe.” Following deliberation on the matter, a motion was made, duly seconded and approved by a roll call vote of 12-29. In reaching its decision the Athletic considered the very real factors of financial impacts, logistics, transportation, lack of consistent health information, and (the Council’s paramount consideration) the safety of the student athletes. The decision to delay the athletic season for four months was based upon substantial evidence and not arbitrary and capricious. Conclusion The Athletic Council of NYSPHAA Section VIII acted within the lawful scope of its authority in deciding to delay the start of the high school athletic season. Petitioner failed to exhaust its administrative remedies prior to commencing this proceeding. Arguendo, even if petitioner was not required to exhaust its administrative remedies the decision to delay the start of the season was supported by substantial evidence and not arbitrary and capricious. The petition is dismissed. This constitutes the decision and order of the court. Dated: October 5, 2020
