In practice, the Respondent paid the Applicant during the 2013/14 game season, in addition to his salary, a one-time sum of ILS 7,000 as well as a monthly sum of ILS 5,000, which appeared in the Applicant's salary slips as "fuel expenses". The Respondent never paid the Applicant the sum of ILS 25,000.
- On December 16, 2014, a disciplinary committee was held for the applicant, following an incident in which the applicant allegedly acted verbally and physically violently towards the team's coach, according to the respondent. The disciplinary committee imposed a fine of 3 salaries on the applicant and suspended him from the team. At the end of the day, the applicant was allowed to return to the group, and it was decided to reduce the fine to the amount of one salary, which was not paid to the applicant.
- The Applicant filed a claim with the Association's Arbitration Institution against the Respondent, in which it demanded payment for the Respondent's obligations under the Appendix (ILS 50,000 for rent expenses during the ten months of the 2014/15 season, and a refund of ILS 25,000 for the payment to the Maccabi Tel Aviv team); the sum of ILS 16,484 for the salary that was not paid to him due to the fine; a grant for 12 league points; a retention grant in the amount of ILS 26,500; payment of ILS 79,338 for pension deposits that the Applicant claims were not made during the period of the engagement; and compensation for mental anguish and professional damage in the sum of of ILS 100,000.
- The Respondent, for its part, filed a statement of defense and a counterclaim, to receive the sum of ILS 50,383 paid to the Applicant during the 2013/14 season as reimbursements for fuel expenses, which it claimed were paid in error by virtue of a "double contract", as well as the sum of ILS 30,518 for non-pecuniary damage caused to it as a result of the Applicant's conduct in the incident that is the subject of the Disciplinary Committee. The Respondent also argued that the Applicant must return to her the sum of ILS 8,469 that was overpaid to him, in respect of sums paid to the Applicant after the filing of the claim (the sum of ILS 26,500 for an aliyah grant, and the sum of ILS 7,612 for 4 League Points).
- On July 19, 2016, a reasoned arbitration award was rendered, which ruled that: The appendix is invalid, since it is clear that the parties did not intend to submit it for approval by the Budget Control Authority, and therefore the applicant, who was represented at the time and presumed to know the meaning of the words, is not entitled to the payments set forth therein; There is no room to intervene in the disciplinary proceeding conducted against the applicant or in the punishment imposed by the disciplinary committee, which does not deviate from the realm of reasonableness; the payment of the salary withheld due to a fine should not be ordered. In any event, the Respondent was entitled to deduct the fine by retroactively calculating between the parties under Section 25(b) of the Wage Protection Law, 5718-1958 (hereinafter - the Wage Protection Law), even if the Respondent was not entitled to withhold the Applicant's salary in real time under Section 25(a) of the Wage Protection Law (a question that was not examined); the Applicant did not prove his entitlement to 8 additional League Points beyond the 4 League Points paid to him by the Respondent; the calculation of the amount of pension contributions presented by the Respondent must be accepted ( which is lower than the Applicant's calculation), since the Applicant chose not to respond to the calculation and the arguments presented by the Respondent in its statement of defense, and accordingly the Respondent must pay the Applicant only ILS 11,922 for pension deposits, less the ILS 9,600 that was deposited by the Respondent on an ongoing basis into the Applicant's pension fund - an amount that must be offset against the sums that the Respondent paid to the Applicant in excess of it. The arbitrator rejected the Applicant's claim for compensation for mental anguish and professional damage, reasoning that the Applicant had not laid a factual basis for this claim.
With regard to the counterclaim, the arbitrator ruled that: there is no reason to order the return of the sums paid according to the Respondent on the basis of a "double contract", since it did not demand their return upon discovery of the error; The Respondent did not prove that it suffered damages as a result of the Applicant's conduct; In the circumstances of the case, the Applicant does not need to return to the Respondent the sum of ILS 8,469 that was overpaid to him, except for the part that was offset against the sum of ILS 2,322 due to the Applicant in respect of pension deposits.
- On September 12, 2016, the Applicant filed a motion with this Court to set aside the arbitration award, relying on various grounds for annulment listed in Section 24 of the Arbitration Law, 5728-1968 (hereinafter - the Arbitration Law), as described below. This application is the subject of the judgment.
- Summary of the Applicant's arguments -
The Applicant claimed a series of defects that justify the annulment of the arbitration award, in accordance with sections 24(3), 24(5), 24(8), 24(9) and 24(10) of the Arbitration Law:
- The arbitration award must be annulled for the reason given more than three months after the date on which the arbitrator began to hear it, as set out in the addendum to the Arbitration Law.
- The arbitrator exceeded his authority when he accepted the Respondent's calculation of the amount of the pension deposits, while ignoring the cogent provisions of the law in this matter and the Applicant's arguments and calculations as presented in the statement of claim. Even the arbitrator's determination that the amount of deposits owed to him by the respondent should be deducted from the sums that she overpaid was done without authority, since it is not possible to deduct funds deriving from a cogent right. In his summaries, the Applicant further argued that until now the Respondent has not yet released to him the partial deposits that it claims it has made long ago. In addition, the Applicant claimed that from August 2014 until the end of February 2015, the Respondent did not make any deposit to his pension fund in respect of the employee's share, even though according to the Respondent's salary slips, these sums were deducted from his salary.
- The arbitrator exceeded his authority when he ruled that the appendix was invalid, in contravention of the association's bylaws, the control agreement, the Contracts Law (General Part), 5733-1973 and the Contracts Law (Remedies for Breach of Contract), 5731-1970, and while ignoring the evidence presented to him. The Applicant further argued as to the factual circumstances of the case, as to the true intention of the parties with regard to the status of the appendix and the reasons for not submitting it for approval. In addition, the Applicant claimed that the arbitrator exceeded his authority and ruled in contravention of the provisions of the Wages Protection Law, when he ruled that the Respondent was not liable for the restitution of ILS 25,000 paid by him to the Maccabi Tel Aviv Group and the restitution of ILS 5,000 two months for the entire period of the engagement.
- The arbitrator exceeded his authority and ruled in contravention of the Wages Protection Law, the Sports Law, a retrial - 1988 (hereinafter - the Sports Law), the Association's bylaws and the rulings that were ruled on the matter, when it gave effect to the disciplinary proceeding conducted by the respondent and the disproportionate fine it imposed. The disciplinary proceeding was carried out in violation of the law, in the absence of disciplinary regulations and protocol and without a justifiable reason, while the withholding of the salary due to the fine was done in contravention of the provisions of section 25 of the Wages Protection Law, both because the fine was not imposed in accordance with a collective agreement or legislation in accordance with section 25(a) of the Wages Protection Law, and because the fine does not constitute a debt to the employer under section 25(b) of the Wages Protection Law. The Applicant further presented arguments on the factual level, which, according to him, should prove that the Disciplinary Committee's conclusion was unjust.
- The arbitrator ignored, or did not give sufficient weight, to the fact that the Respondent paid the Applicant the grant for 4 League Points and the Retention Grant only after the commencement of the arbitration proceeding, and the arbitrator should have charged the Respondent with exemplary court expenses, including attorney's fees and the arbitrator's fees.
- The arbitrator did not decide, or at least did not discuss the Applicant's claim for compensation for mental anguish and professional damage, when it dismissed the matter by the Applicant not laying a sufficient factual basis.
- From the totality of the arguments presented by the Applicant, it appears that the arbitration award contradicts public policy, and constitutes grounds on which a court would have annulled a final award that is not appealed, especially when the arbitration award ignored the Supreme Court's rulings, the Budget Control Authority's regulations, and the provisions of the Wages Protection Law.
- In summary, the Applicant added that as it appears from the judgment in Arbitration Claims (Tel Aviv Areas) 34603-12-15 Harel Holdings - Hapoel Tel Aviv Football Club in a Tax Appeal v. Daniel Amos (published in Nevo, June 9, 2016) (hereinafter - the Amos case), the case law determined that disputes related to workers' rights that originate in the protective labor law should not be transferred to arbitration.
- Summary of the Respondent's arguments -
- It was the applicant himself who submitted his claim to the arbitration institution, and recognized it as the right tribunal to hear the matter. The judgment in the Amos case to which the Applicant referred was given long before the arbitrator, but the Applicant chose not to raise this matter or to request the termination of the proceedings before the arbitrator until after the completion of the arbitration proceeding, since he saw that the outcome of the proceeding was not to his liking. This conduct of the applicant should be regarded as conduct in bad faith that creates an impediment to raising the claim of lack of authority, since the claim of lack of authority is subject to the principle of good faith and the rules of estoppel and prevention.
Even the comparison made by the Applicant between his case and Amos's case is tainted by extreme bad faith, since in our case the Applicant is the one who chose to conduct the proceeding before an arbitrator.