14 Del. Admin. Code § 1020-9.0

Current through Reigster Vol. 28, No. 6, December 1, 2024

Section 1020-9.0 - Waiver of DIAA Rules and Regulations

9.1 General Hearing Procedures and Rules

9.1.1 The Board has the authority to set aside the effect of any athletic rule or regulation, subject to any limitations set forth in the specific rule or regulation, when the affected party establishes by the preponderance of the evidence, all of the following conditions:

9.1.1.1 In the case of eligibility waiver requests, there exists a hardship as defined by subsection 9.2.1;

9.1.1.2 Strict enforcement of the rule in the particular case will not serve to accomplish the purpose of the rule;

9.1.1.3 The spirit of the rule being waived will not be offended or compromised;

9.1.1.4 The principle of educational balance over athletics will not be offended or compromised; and

9.1.1.5 The waiver will not result in a safety risk to teammates or competitors.

9.1.2 Waivers are exceptional and extraordinary relief from the athletic rules and regulations. Ignorance of any rule or regulation alone, whether by the student athlete, the student athlete's family or school, or other affected party shall not be sufficient reason for waiving a rule. The burden of proof rests on the applicant to show extenuating circumstances warranting waiver.

9.1.3 The waiver request shall contain all facts pertaining to the case, including sufficient information to make it possible for DIAA to reach a decision. If a waiver request does not include all of the required documentation, it will be deemed incomplete and will not be processed by DIAA.

9.1.3.1 For a waiver request of an eligibility rule, the required documentation is set forth in subsection 9.2.2.2.

9.1.3.2 For a waiver request of a non-eligibility rule, the required documentation is set forth in subsections 9.3.2 and 9.3.4.

9.1.4 All requests for a waiver, with all documentation complete, must be received by the Executive Director at least 30 calendar days before the next regularly scheduled meeting of the Board.

9.1.5 For requests for a waiver of an eligibility rule, the Executive Director will decide whether to grant a waiver, as provided in subsection 4.3, based on the waiver request and documentation submitted with the request.

9.1.5.1 If the Executive Director decides to grant a waiver under subsections 4.3 and 9.1.5, the waiver is temporary and subject to the Board's approval. The Executive Director will send written notice of the decision to grant a waiver to the applicant, including when the Board will consider the matter. The applicant may attend the Board's meeting but is not required to do so.

9.1.5.2 If the Board ratifies the Executive Director's decision to grant a waiver of an eligibility rule, the student athlete will remain eligible to participate as outlined in the Executive Director's written notice provided that the student athlete complies with all other eligibility rules.

9.1.5.3 If the Board does not ratify the Executive Director's decision to grant a waiver of an eligibility rule, the student will no longer be eligible to participate as outlined in Executive Director's written notice and an evidentiary hearing before the Board will be scheduled.

9.1.6 If the Executive Director does not grant a waiver or the Board does not approve the Executive Director's decision to grant a waiver, a hearing before the Board will be scheduled.

9.1.6.1 The Board may permit opening and closing statements.

9.1.6.2 The Board may take testimony, hear proof, and receive exhibits into evidence at a hearing. Strict rules of evidence shall not apply. Evidence having probative value commonly accepted by reasonably prudent people in the conduct of their affairs may be admitted into evidence.

9.1.6.3 Testimony shall be under oath or affirmation. The Board may administer oaths to witnesses.

9.1.6.4 Any person who testifies as a witness shall also be subject to cross examination by the other party and questions from the Board.

9.1.6.5 The applicant's opportunity to submit documents to the Board for consideration is with the applicant's waiver request and at the applicant's hearing. Any document introduced into evidence at a hearing shall be marked by the Board and shall be made a part of the record of the matter. The Board will not accept or consider documents that are submitted after the hearing, as such documents are outside of the record.

9.1.6.6 Any request by the Board for additional information shall be promptly supplied by the applicant.

9.1.7 The Board shall consider the entire record of the case in reaching its final decision. Unless otherwise provided, the Board's decision on a waiver request shall be effective immediately.

9.1.8 The Board's decision will be incorporated into a written order, which is signed by the Board and sent to the applicant within 20 days of the hearing.

9.1.9 An applicant may be represented by an attorney. The attorney representing an applicant shall notify the Executive Director of the representation in writing as soon as practical. Attorneys who are not members of the Delaware Bar may be admitted pro hac vice in accordance with Rule 72 of the Rules of the Supreme Court of the State of Delaware.

9.2 Eligibility Rule Waiver Requests

9.2.1 Unless specifically defined in the eligibility rule in question, "hardship" means a hardship peculiar to the student athlete caused by unforeseen events beyond the election, control, or creation of the student athlete, his or her family, and his or her school, which deprive him or her of all or part of one of his or her opportunities to participate in a particular sports season. Ignorance of any rule alone, whether by the student athlete, his or her family, or his or her school, shall not be sufficient reason for waiving a rule. The waiver provision is intended to restore eligibility that has been lost as a result of a hardship situation. Injury, illness or accidents, which cause a student to fail to meet the basic requirements, are possible causes for a hardship consideration.

9.2.2 All eligibility hardship waiver requests shall be processed on forms approved by the Board and in accordance with the following procedures:

9.2.2.1 A request for a waiver of the eligibility rules must be directed by the student athlete to the involved Member School's Principal, Headmaster, or the Principal or Headmaster's designee who shall then file a written request stating the full particulars of the case and the reasons felt by the student athlete or the school, or both, for granting the waiver.

9.2.2.1.1 All requests for eligibility rule waivers must be signed by the Principal or Headmaster of the school requesting the waiver and must include a letter from the Principal or Headmaster indicating whether the school supports the waiver request.

9.2.2.1.2 The school shall submit a waiver request form when requested by individual student athletes. The Board, however, may take into consideration the school's position on the waiver request when rendering its decision.

9.2.2.2 To aid the Board in making an informed decision, the waiver request shall include the student athlete's:

9.2.2.2.1 Official transcripts from the sixth grade through the current school year and most recent report card or grade report (if the most recent grades are not included on the transcript);

9.2.2.2.2 Attendance records for the last two years;

9.2.2.2.3 A letter from the Principal or Headmaster of the school requesting the waiver either supporting or not supporting the waiver request;

9.2.2.2.4 A letter from the student athlete, the student athlete's parent, guardian, or Relative Caregiver, or both explaining in detail the circumstances for requesting a waiver;

9.2.2.2.5 Documentation of withdrawal from a school (if applicable);

9.2.2.2.6 Documentation of acceptance in a school, such as an acceptance letter from a nonpublic school (if applicable);

9.2.2.2.7 School District Choice Enrollment Program documents that show the date of withdrawal and the date of enrollment (if applicable);

9.2.2.2.8 School calendar;

9.2.2.2.9 Any documentation specifically required by the rule;

9.2.2.2.10 Medical records (if applicable);

9.2.2.2.11 Legal documentation (if applicable);

9.2.2.2.12 IEPs (if applicable);

9.2.2.2.13 Any documentation or evidence to substantiate a hardship exists;

9.2.2.2.14 For waiver requests of the Junior High and Middle School Transfer Rule and High School Transfer Rule, documentation of official withdrawal from the sending school and official registration in or acceptance to the receiving school. In addition, the student athlete is required to obtain a certification from the sending and receiving schools that the student athlete transferred for the reasons indicated on the student athlete's waiver request form and that the student athlete's transfer was not motivated by an athletic purpose. If the student athlete is unable to obtain a certification from the sending school, the receiving school, or both schools, the student athlete may submit a written statement explaining why the student athlete is unable to obtain the certification.

9.2.3 An appearance by the student athlete and the student athlete's parent, guardian or Relative Caregiver before the Board is mandatory. An appearance by a school representative is strongly encouraged.

9.3 Waiver Requests of Non eligibility Rules

9.3.1 The Principal or Headmaster of a Member School, or any other individual may request a waiver of a rule or regulation not directly related to student eligibility when special circumstances arise that, in the Principal or Headmaster's opinion, or in the opinion of the individual, call for relief from, or modification of the effects of the rule or regulation.

9.3.2 All requests for non eligibility waivers must be in writing, signed by the Principal or Headmaster, or other individual.

9.3.3 An appearance by the applicant requesting the non eligibility waiver is optional. If the Principal or Headmaster or the Principal or Headmaster's designee or other individual requesting the non eligibility waiver chooses to appear before the Board the individual must notify the Executive Director of the individual's intent to do so at the time the request for waiver is filed. Otherwise, the individual may attend the meeting but may not be permitted to address the Board.

9.3.4 If the waiver requested would affect more than one Member School, the applicant shall provide the position of the other affected Member Schools on the waiver request in their written application. The failure to provide this information may result in a delay in the Board's consideration of the waiver request.

9.4 Exceptions to Playing Rules for Student Athletes

9.4.1 Notwithstanding subsection 9.1.1, a student athlete who requests an exception to a playing rule that has been adopted by the Board shall establish the following four conditions by a preponderance of the evidence:

9.4.1.1 The student athlete has special needs or unique or extenuating circumstances;

9.4.1.2 The requested exception will not fundamentally alter the sport;

9.4.1.3 The requested exception will not heighten risk to the student athlete or others; and

9.4.1.4 The requested exception will not place opponents at a disadvantage.

9.4.2 The request shall be on the form approved by the Board and it shall include:

9.4.2.1 The playing rule or rules at issue;

9.4.2.2 The exception that the student athlete requests; and

9.4.2.3 Documentation to support the four conditions in subsection 9.4.1.

9.4.3 An appearance by the student athlete and the student athlete's parent, guardian, or Relative Caregiver before the Board is mandatory. An appearance by a school representative is strongly encouraged.

14 Del. Admin. Code § 1020-9.0

26 DE Reg. 186 (9/1/2022) (Final)