Alternatively, the administration argued that section 17(b) of the Hours of Work and Rest Law applies, since the players received a compensatory rest that exists inherently within their employment structure due to the low scope of the players' job.
- Redemption of annual leave - Players are not entitled to redemption of annual leave accrued for them by wishing to take advantage of the entire quota of vacation days to which they are entitled during the break season and the summer break. The administration presented data that ostensibly show that the breaks during and after the season amount to the number of vacation days that far exceed the level of the players' entitlement.
- Severance pay – In this regard, the Administration joined the groups' arguments as presented above, noting that the very filing of the claim in our case constitutes an extreme lack of good faith, which may negate the protections to which an employee is entitled by virtue of labor law.
The Association's Position
- In essence, the Association argued that leaving the judgments in the appeal in place, with an emphasis on their rulings regarding the entitlement to weekly rest pay for work, redemption of annual leave, severance pay, and convalescence pay, is liable to harm the stability of the football industry in Israel. According to her, the football industry operates in accordance with local regulations (inter alia, of the Budget Control Authority) and international regulations (due to the membership of FIFA (Global) and UEFA (Europe)) which limit the scope of action of the teams as employers in a way that makes it difficult to change the employment practices that have been practiced in the teams for many years.
- Among other things, the association argued that applying the ban on total wages is not possible in the football industry. The budgets of the groups as approved by the Budget Control Authority are presented in the form of the "Total Cost of Transaction". Therefore, she argues that the employment contracts of soccer players should reflect the entire cost of employment, and it is not possible to allow a situation in which there will be an additional cost beyond the salary presented in the contracts, since then this will lead to a budgetary exceedance, which may harm the activities of the teams both domestically and internationally.
- Weekly rest pay - According to the Association, the activity of the sport during the weekly rest days is rooted in Israeli culture and this has been known to the players since the beginning of their career in the youth teams. The players are well aware that the remuneration stipulated in their employment contracts includes compensation for work on the weekly rest day. In the meantime, the association added that the players receive higher salaries than the average in the economy and that almost all of them are represented by agents who are partners in signing employment agreements. Therefore, they claim that this is a violation of the existing status quo in the industry.
In addition, it was noted that section 30(a)(5) of the Hours of Work and Rest Law applies to the actors, since they work "in positions that require a special degree of personal trust." A player is selected for the team not only because of his personal abilities, but also because of his suitability to the formation of the soccer team in the specific position in which he plays and to the player's unique style of play. Alternatively, it was argued that the players receive "compensatory rest", since the low scope of their employment actually includes a higher "compensatory rest" than is required by law.
- Redemption of annual leave – It is claimed that a player's employment contract was signed in relation to the season, and therefore the period between seasons should be treated as a period in which the players take advantage of all the remaining vacation days to which they are legally entitled.
- Severance pay - It was argued that the structure of the soccer industry does not allow the application of the provisions of section 9(b) of the Severance Pay Law, since three months before the end of the season, the soccer team cannot know whether it intends to continue the engagement with a specific player. This claim is based on the fact that at this stage of the season the team cannot know the number of games it will have next season (inter alia, depending on participation in international matches) and what its budget will be for the next season (depending on the team's position in the table at the end of the season). Moreover, the association noted that within a period of three months, a player may be incapacitated or injured in a way that may affect the contract with him.
- Convalescence pay – It was argued that the inclusion of convalescence pay as part of the salary is a permissible and legitimate practice and is not prohibited in accordance with the provisions of the Wages Protection Law.
The Histadrut's Position
- At the outset, the Histadrut argued that there was no place to make distinctions between soccer players and other workers' groups, neither because of their salaries nor for any other reason. Meanwhile, the Histadrut noted that not all soccer players are entitled to high wage conditions, since players from the lower leagues are entitled to much lower conditions than those in the top leagues.
- The no-claims and salary clauses, including severance pay on which the teams rely, have no legal validity. These are sections that imply a waiver of cogent rights, which is not possible, and it has already been determined that the law of these sections is null and void, especially when it comes to a provision according to which the calculation of the rights will be done according to the minimum wage and not according to the wage as defined in respect of each right.
- The argument that section 30(a)(5) of the Hours of Work and Rest Law applies must be rejected. In accordance with the case law, the application of the section should be done in a narrow manner. In any case, taking into account the manner in which the case law interpreted the provisions of the section, including the requirement for seniority, special responsibility, the ability to make independent decisions, etc., there is no room to apply the provisions of the section in our case.
- With regard to the argument that the Hours of Work and Rest Law should not be applied to the players, the Histadrut argued in general that these are cogent legal provisions that do not exist in the existing regulations in the industry, the high wages of certain players and the fact that these are customary practices in the industry, in order to change the application of the provisions of the law, which, as stated, cannot be stipulated.
- Even with regard to the applicability of the provisions of section 9(b) of the Severance Pay Law, the Histadrut argued that there was no reason to deviate from what was set out there due to the "industrial context". According to her, even taking into account the purposes of the law, which are intended to prevent employers from evading the payment of severance pay, the provisions of the law should be applied.
- With regard to the question of redemption of annual leave, the Histadrut supported the ruling in the judgments that are the subject of the appeals before us.
Discussion and Decision
- After considering the written and oral arguments of the parties and all the material in the files, we have reached the conclusion that Maccabi Netanya's appeal should be accepted; Bnei Yehuda's appeal should be accepted in the main, except with regard to Zubas's entitlement to severance pay; and Zubas's appeal should be dismissed in the main way, except with regard to compensation for non-deposit to the pension fund and the issue of linkage and interest, as will be detailed below.
- As stated at the beginning of the judgment, this will be the course of our decision: first we will address the common components: work compensation with weekly rest; redemption of annual leave; Eligibility for severance pay. Later we will discuss the individual components.
- Common Components of the Two Claims
- 1. Weekly Rest Work Reward
- 1.I. Application of the Law to Players
- 1. Weekly Rest Work Reward
- The Hours of Work and Rest Law is one of the first protective laws enacted and its main purpose "is to ensure that there is a proper balance in a person's life between the hours he devotes to his work and leisure time. The law goes against the prevailing trend in the labor market, of working extremely long hours, and seeks to preserve the dignity of the workers."[2] The proper balance between work and leisure concerns both limiting the scope of daily or weekly work hours and limiting the number of working days per week in order to ensure that the employee has a weekly rest day, which is a fundamental right of a person who works from his own sources[3].
- The achievement of the purposes of the law is done "in two ways: the first way is a sentence of imprisonment or a fine on the offender; The second way is to impose an economic burden that will result in overtime work and weekly rest being unprofitable in terms of work outings, so that they will work overtime and weekly rest only when there is an operational necessity to do so. Overtime pay and "weekly rest pay" are one of the expressions of the second way. A side effect of these is an increased salary for the employee."[4]
- Section 30(a) of the Hours of Work and Rest Law lists six types of employees that were excluded from it, and the section states as follows:
"This law does not apply to the employment of: