Moreover, Zubas claimed that during the national team break, Bnei Yehuda received payment from FIFA. The Regional Court ruled that this argument was not contradicted, and against this background, these days should not be attributed at the expense of the annual leave. We have a different opinion. Since the claim that Zubas raised only in his cross-examination is discussed, it is difficult to attribute Bnei Yehuda's obligation not to bring evidence to the contrary. This is a suppressed claim that has no support and is therefore difficult to rely on. Either way, Zubas did not prove at all the rate of payment that Bnei Yehuda received. In any event, while Zubas received full payment from Bnei Yehuda for these days of absence as well, these days can be credited at the expense of his vacation days.
However, even if we do not take into account the national team break, as in the case of Amos, it is possible to take into account the periods between the end of the season and the end of May as periods of annual leave.
- In light of all of the above, Bnei Yehuda's appeal is accepted and its obligation to pay Zubas the redemption of annual leave is canceled.
- 3. Severance pay
- Section 9 of the Severance Pay Law states with respect to the employment of an employee on a fixed-term contract as follows:
")a) If an employee is employed under a fixed-term contract and the period has come to an end, he is considered to have been dismissed for the purposes of this Law, unless the employer offers him to renew the contract; If the employee refuses to renew the contract – he is considered, for the purposes of this law, as if he has resigned.
(b) The employer's proposal to renew the contract as stated in subsection (a) must be given to the employee at least three months before the end of the contract period."
- The clause states that termination of a fixed-term contract is considered dismissal, unless the employer offers the employee to renew his contract, at least three months before the termination of the contract. An offer to renew such a contract must be made under at least the same conditions (it is also possible under preferential terms, but the employer is not obligated to do so). An employer who offers an employee to continue his employment under lesser conditions will not be considered to have proposed a contract renewal for the purpose of Section 9, but rather as an offer of a new contract[36].
- The teams argued that the uniqueness of the football industry should be taken into account when examining the applicability of section 9(b) of the law, since they claimed that the requirement that a new contract be offered to a player 3 months before the date of termination of the contract is not possible. In light of the conclusions we have reached regarding the players here (in the case of Amos – the offer for renewal was made later but was refused due to the desire to upgrade his salary, so that in any case he was not entitled; in the case of Zubas – no offer for renewal was made at all, not even later), there is no need for this argument, although it can be noted that this argument raises a difficulty. Section 9(b) of the Severance Pay Law does not distinguish between different types of employees and does not exclude types of industries or employers in which the employer can also have difficulty expecting three months in advance if the employee's employment is required. It should be noted that there is no argument before us that it was agreed with any of the players, whether in advance or retroactively, that the date set out in section 9(b) would be postponed, so that reliance on the provisions of the clause contrary to the agreements between the parties amounts to a lack of good faith. The aforesaid does not express a position one way or the other, whether there is even an explicit stipulation on section 9(b) of the Severance Pay Law, and if so, under what circumstances. Let us now turn to the individual cases.
- 3.I. A busy matter
- Amos's last employment contract at Maccabi Netanya was valid until May 31, 2022, so that according to Section 9(b) of the Severance Pay Law, Maccabi Netanya was required to offer him a new employment contract until February 28, 2022. The Regional Court ruled that Maccabi Netanya did not prove that Amos was offered a new employment contract on the said date. There is no room to intervene in this factual determination. Nevertheless, we are of the opinion that in the circumstances of the case, Amos is not entitled to severance pay, and we will explain:
- First, we must address Amos's version that only on June 19, 2022, he learned from media reports (Maccabi Netanya's announcement to the media published on June 19, 2022 at 15:19) that he would not play for Maccabi Netanya in the following season. We are unable to accept this version. The reason for this lies in the fact that on the same day (June 19, 2022) he signed an agreement with the Maccabi Petah Tikva team. Admittedly, the agreement with Maccabi Petah Tikva, which bears the aforementioned date, was not actually attached to the affidavit submitted to the court, although it was mentioned as part of Appendix D to his affidavit. However, Amos was interrogated and his interrogation revealed that the title of the agreement did indeed record June 19, 2022. In these circumstances, the fact that the agreement was not attached fulfills its obligation on the question of whether the date of its drafting does indeed appear in its title – June 19, 2022, and Maccabi Netanya's position on this factual question is accepted. Since according to the title of the agreement it was drawn up on June 19, 2022, the burden of proving that it was drawn up at a later date rests on Amos, and this has not been lifted.
To complete the picture, we will present Amos's testimony regarding the agreement with Maccabi Petah Tikva, after his cross-examination examined his version that it was only on June 19, 2022 or June 20, 2022 that he became aware that his contract with Maccabi Netanya would not be renewed and only then began looking for a team, and he testified as follows: