Civil Case (Tel Aviv) 4497-11-23 Hapoel Haifa Millennium Ltd. v. Saar Fadida - part 4

And from the halacha - to its implementation

39. I will preface the latter by saying that I found that the two decisions of the institution justified the intervention of the Tribunal, and that it had the authority to intervene in them; I came to the conclusion that there is no reason to interfere in the decisions of the Tribunal and that the judgment should be left in place. In summary, I hold that on the merits of the matter, the institution's method of calculation with respect to "most of its years" was erroneous; The first decision was not sufficiently reasoned and lacked a central element (the comparison to the years at Maccabi Haifa); The second decision was in direct contradiction to the first decision, and these two decisions cannot coexist (in one it was determined that Fadida played for Hapoel Haifa for 5 years, and in the second - 7 years, and the same amount of compensation was determined).  I am of the opinion that this is sufficient to justify intervention for reasons of lack of authority and violation of the rules of natural justice.  Moreover , I am of the opinion that there is room for an interpretation according to which the provisions of section 14(a)(8) of the Regulations do not apply to the specific decisions of the institution and the respondent's right of appeal regarding these decisions has not been denied, I will clarify these determinations.
40. In the two rulings handed down by the Tribunal, the Tribunal gave its opinion to situations in which it is possible to intervene in the decisions of the Institution: "In deciding this appeal, we considered first and foremost the provisions of the Regulations, as well as previous rulings of the Supreme Court, according to which there is no right in principle to appeal against the decisions of the Status of Actor Committee, except in rare cases of deviation from authority and/or violation of the rules of natural justice." (Paragraph 9.1 of the first judgment, paragraph 10.1 of the second judgment). These words of the Tribunal are consistent with the rules established by the Tribunal in its decisions regarding intervention in the Institute's decisions (see Appendix A to the Respondent's response): "Section 14(a)(8) of the Registration Regulations states that the Institute's decisions are final and cannot be appealed.  Despite this, the Supreme Court has ruled in the past that the decisions of the institution can be attacked when the decision is essentially null and void, due to deviation from authority or violation of the rules of natural justice.  In these cases, the Supreme Court is authorized to declare the institution's decision null and void, within the framework of the court's "High Court Hat.")

In his case, the Supreme Court examined the two decisions that were given by the institution, and ruled that these decisions could not stand, each for its own reasons, and that this was sufficient to justify its intervention according to the exceptions mentioned above.

41. Thus, in the framework of the first judgment, the tribunal found that the first decision of the institution was replete with "internal contradictions" and lacked an explanation of "how and why he reached the conclusion that the appellant had played most of his years with the respondent" (see in this regard the first judgment, at paragraph 11). A review of the first court's decision shows that no substantive calculation was made regarding the periods in which the respondent played for Maccabi Haifa (see in this regard paragraph 25 of the first decision: "In his case, the player was registered in the line of the transfer team for about 6 seasons (minus the loan season), but in practice it was only 5 seasons, in view of the global coronavirus crisis (in the 2019/20 - 2020/21 seasons)".  In other words, there is a factual determination only with respect to the periods in which the Respondent played for the Applicant, while ignoring his past in the Maccabi Haifa team.  How, in this state of affairs, can it be determined where he played most of his years, if there is no determination at all about the Maccabi Haifa period?
42. In my opinion, such a material failure in the first decision constitutes a deviation from authority or a violation of the rules of natural justice (a matter that has not been examined at all), and therefore, given the grounds for intervention in the hands of the Tribunal, the Tribunal lawfully ordered "the return of the hearing to the institution to the status of the actor, which will be required to discuss and decide, while providing proper reasoning, on the preliminary question relating to the very entitlement of respondent 2 to betterment fees in respect of the appellant" (paragraph 16 of the first judgment).
43. Subsequently, and in the framework of the second judgment, the court ruled that: "It is impossible to ignore the fact that both the first and second decisions of the institution for the status of the actor leave an uncomfortable feeling, especially due to the fact that the second decision of the institution is full of contradictions - both internal contradictions and contradictions compared to the first decision" (paragraph 10.1 of the second judgment). The court later ruled: "The Supreme Court...  He returned the law to the institution for discussion and a decision on the question of entitlement, and addressed the question of how the term "most of his years" should be interpreted in a reasoned and detailed manner.  Unfortunately, the second decision also suffers from the same flaws as the first decision" (paragraph 10.4 of the second judgment).
44. Subsequently, the court pointed out the same flaws and contradictions that underpinned the second Mossad decision. Thus, with regard to the loan periods, the Tribunal found a lack of uniformity in the inclusion of the loan period: "From the number of the appellant's years in the ranks of Maccabi Haifa, the loan year was deducted for respondent 2, and from the number of the appellant's years in the ranks of respondent 2, the institution did not deduct the loan year for Hapoel Rishon LeZion." Thus, with regard to the COVID-19 period, the court found that although the institution gave weight in its second decision to the question of "where did the player actually play", it chose not to relate in the second decision to the 2019/20 and 2020/21 seasons - the coronavirus crisis.  This lack is sharpened in light of the fact that in the first decision, the institution deducted the COVID-19 years in calculating the periods and did not do so in its second decision.
45. From the aforesaid, it emerges that the decisions of the institution were indeed inconsistent and contained material errors and flaws that in practice violated the rules of natural justice, and as a result required the intervention of the court in the decisions of the institution. Thus, in the law, the court ruled that the second decision: "also suffers from the same defects as the first decision" Further to this, the court ruled that: "We are of the opinion that the importance given by the institution to the fact that in the count of the years of improvement the player should be counted in the number of years in which the player actually played for a team over the number of years in which the player was registered in any team but did not actually play in it - is based on the law of its foundation.  At the same time, as a result, we must also take into account a season in which an exceptional incident occurred such as the year of the Corona in which, by all opinions, no actual games were played, and therefore there was no improvement whatsoever" (paragraph 16 of the second judgment).
46. Therefore, I am of the opinion that the Applicant's arguments that the very decision of the Tribunal to intervene in the decision of the institution itself is a decision made without authority or in violation of the rules of natural justice should not be tolerated. Certainly the court would have been entitled to intervene in these decisions if we applied the same more expansive tests that were established in the Truiman case, as justifying the intervention of the court on internal tribunal decisions.  According to these tests, it is also justified to intervene in a decision "that was made in bad faith, unreasonableness, or contrary to public policy.  These are the grounds for criticism, and to them must be added intervention in the level and reasonableness of the punishment - the Ignett case above, as well as other cases in which the court will also see fit to intervene" (see paragraph 7 in the Truiman case, my emphases).
47. In the case before us, the Mossad's decisions are unreasonable - since they do not apply the same law to the period at Maccabi Haifa and to the period at Hapoel Haifa (the loan); it is unreasonable that in the first decision the Mossad ordered the disregard of the Corona period and in the second we did not deduct it; and it is unreasonable that in each decision a different calculation was made and different periods of Fadida's stay at Hapoel Haifa were determined (5 years vs. 7 years).  At the very least, this is an "unnamed" case that justifies intervention, since the decisions contradict all basic logic and cannot remain in place.  I am of the opinion that in such a case, the court duly intervened in the first and second decisions of the institution, and ruled as it determined.
48. After we have determined that the decisions of the court were given with authority and there is no reason to annul them for this reason, we will examine whether there is room for the court to intervene in the judgment for any other reason. On this point, the answer should be in the negative, and I am of the opinion that on the merits of the matter as well, the court reached the correct result.  There is no violation of the rules of natural justice in his decision; Even according to the expansive tests, there is no unreasonableness in the decision, there is no lack of good faith, it is not a "nameless" case that justifies intervention.  Beyond that, I agree with the analysis presented in the second judgment regarding the calculation of "most of his years", and I will elaborate.
49. From the documents placed before me, it appears that the respondent began playing for Maccabi Haifa in 2006 (see the minutes of the hearing at p. 2, lines 17-18).  For the purpose of continuing the discussion, I will take into account the Applicant's argument that in accordance with section 12B(5)(e) of the Regulations, the calculation of the years in which he grew up and advanced in the team is only from the age of 12 years: "The age of 12 years shall be considered as the minimum age for the beginning of the player's training, even if he began training and playing in it earlier", since the beginning of the calculation of the years is from the 2009-2010 season of games.
50. The end of the number of years in which the Respondent played for Maccabi Haifa is at the end of the 2014-2015 season, and see the judgment of the Second Tribunal (in paragraph 16), according to which the loan period for the Applicant (the 2015-2016 season) should be calculated in favor of the Applicant and not in favor of "Maccabi Haifa" which was registered with it. Therefore, the number of years of the respondent in the ranks of Maccabi Haifa is 6 years.
51. The Respondent played for the Applicant from the 2015/2016 season to the 2017-2018 season , e., 3 seasons. In accordance with the provisions of the second judgment as aforesaid, the 2018-2019 season, when the respondent was loaned to the "Hapoel Rishon LeZion" team, will not be counted in the number of years.  In this regard, I will note that a perusal of the respondent's passport, which was attached to the respondent's summaries, shows that the aforementioned was listed in the ranks of "Hapoel Rishon LeZion" throughout the season and not in the middle of the season.
52. After Fadida was loaned to Hapoel Rishon LeZion, he returned to play for the Respondent from the 2019-2020 season, in the 2020-2021 season and until the 2021-2022 season. That is, 3 more years.  Thus, the total number of years in which the Respondent played for the Applicant is at most 6 years, and this is even before the deduction of the Corona period as instructed by the Institute in its first decision.  In other words , there is no factual basis for the determination that Fadida played most of his years at Hapoel Haifa, and the number of years can only further work to the detriment of the Applicant, if we accept the Respondent's arguments regarding the age of betterment as presented in paragraphs 28-29 of his summaries (as well as Appendix E to the summaries).  I do not express an opinion on this matter (whether the betterment is calculated only until the age of 21) and we will leave it for the time being.
53. What has been said so far is sufficient to determine that the court was entitled (and should) intervene in the decisions of the Mossad, and there is no reason to justify the court's intervention in the decisions of the court. More than necessary, I will note that when I read section 14 of the Regulations as a whole, I found great reason for the argument that the denial of the right of appeal applies to the determination of the sums determined by the institution, but not to its determinations as to the very eligibility.  In fact, it appears that the "adjudicators" are the ones who determine the amount of compensation, see section 14A(4), and a mechanism has been established for how the compensation will be calculated in the event of disagreements; The criteria for determining compensation have been determined (see section 14a(7) a-d), and there are no guidelines regarding the calculation of the period; See section 14(b)(1) of the bylaws, which states that the application is "a request to determine the amount of compensation due for the transfer of a player", and see the procedure set out in section 14(b)(3), in which each party submits the amount of compensation due in its own way.  See also section 14(b)(9) - "The decision of the adjudicators regarding the amount of compensation ..".
54. It appears that these provisions indicate that the adjudicators were given the authority to determine the amount of compensation, and the right to appeal against such a determination was denied (within the limitations mentioned above). At the same time, if a dispute arises regarding liability - as in the case before us (i.e., whether there is entitlement to payment of betterment fees), a question that sometimes justifies evidentiary clarification and hearing arguments (and this is not the procedure that is conducted before the adjudicators, who decide on the basis of writing alone), there is no reason to deny the right of appeal and this is not what the provision of section 14(a)(8) of the Regulations intended.
55. For all these reasons, the application is denied. The court's ruling remained in place.  The Applicant will pay the Respondent the costs of the application, inter alia, taking into account the need to submit a response; Appearing for the hearing and writing summaries, in the sum of ILS 15,000 within 30 days of receiving the judgment.
56. The secretariat will close this file.

Given today, January 22, 2025, in the absence of the parties.