[...]
(c) The aforesaid regulations shall be binding on the sports associations, athletes and officials in that sport or in those sports."
- Section 11(a) of the Sports Law states that:
"The exclusive authority to discuss and decide matters related to activity within the framework of an association or association will be in the hands of the internal judicial institutions set out in the bylaws under section 10, and in accordance with the provisions set forth in the articles of association under that section; The decisions of the highest internal court in matters of discipline shall be final and shall not be appealed before a court."
- Needless to say, the Sports Law was enacted prior to the issuance of a convening judgment, which recognized the classification of athletes as employees for the purposes of the National Insurance Law [Consolidated Version], 5755-1995 , and from which the subsequent rulings were derived, which recognized players who engage in soccer for a living as employees.
- In accordance with the provision of Section 10(a) of the Sports Law, the Football Association has enacted bylaws in the framework of which internal judicial institutions of the Association, which have specific expertise in the field of football, were established. One of these institutions is the Arbitration Institute. The Arbitration Institution's Bylaws (hereinafter: the "Regulations"), which was amended in 2017 (the parties required for the proceeding disagree on the manner in which decisions were made in relation to the amendments that were made, but it appears that the Histadrut was somewhat involved in their amendments). Stipulates in section 7 that the law of the Articles of Association is "the law of an arbitration agreement for all intents and purposes".
- In the framework of Section 2(b) of the Regulations, it was determined that the arbitrators who are members of the Arbitration Institute shall have exclusive authority to adjudicate "any dispute relating to the contractual relationship between a team and a player and between a player and a team." Section 3 of the Regulations stipulates that "any dispute listed in Section 2 above shall be brought to discussion and decision only within the framework of the Arbitration and Mediation Institute." Additional provisions of the Regulations stipulate that the limitation period will be 18 months from the end of the Gaming Season or 6 months from the date of termination of the employment of the Claimant Party (see Section F of the Regulations); that the arbitrator shall not be subject to the laws of evidence and the accepted procedures; that the provisions of the Arbitration Law will apply to arbitration; and that in a matter that is not regulated in the Association's bylaws, the arbitrator will rule in accordance with the substantive law (see section 8(a) of the Regulations). As appears from the material of the file, the players' agreements in question include a provision regarding mandatory arbitration before the Association's institutions, in accordance with the bylaws.
- Section 3 of the Arbitration Law states that: "An arbitration agreement is invalid in a matter that cannot serve as the subject of an agreement between the parties"; while section 5 of the Arbitration Law states that proceedings must be stayed in a case where a claim has been filed in a dispute that has been agreed to be submitted to arbitration as part of an arbitration agreement. According to the provision of subsection C, the court may not delay proceedings "if it deems it necessary that the dispute should not be heard in arbitration".
- According to the current precedent, cogent rights in the protective labor law are not subject to arbitration [see in this regard Labor Appeal (National) 791/05 Doron Katz vs. Roy Sapir [Nevo] (May 4, 2006)].[2] To date, in the vast majority of cases, claims filed by soccer players for rights derived from the protective legislation have been clarified before the labor courts and not before the arbitration institution, since since these rights are cogent, section 3 of the Arbitration Law does not allow them to be transferred to arbitration. However, in recent years, a number of decisions have been given in the regional labor courts in which the proceedings were delayed and transferred to the arbitration institution. For example, the decision of the President of the Jerusalem Regional Court (as he was then called), Judge Eyal Avrahami, in the Ben Yosef case, where it was determined that the proceedings in the court would be delayed in light of the arbitration clause found in the agreement of the actor Tomer Ben Yosef (see also the NINI case; The Elihan case).
From the general to the individual
- As stated above, the applications for leave to appeal in this case were filed on two contradictory decisions that were given in cases that are similar in fact-substantive terms. Both decisions raised a question of principle regarding the relationship between the labor courts and the arbitration institution and their unique authority to hear matters related to the terms of employment of soccer players.
- In the framework of the discussions, the parties raised the problems and difficulties arising from this issue, and many efforts were made on the part of the parties to reach a solution to the problems and settle the disputes. The necessary parties assimilated the Arbitration Tribunal's comments throughout the lengthy proceeding, and reached an arrangement that takes into account the unique characteristics of the industry, shortens the duration of litigation, and encourages efficiency and protection of the rights of the players. On the face of it, we believe that this is the right and appropriate solution for the industry and we commend the parties for reaching an agreement and for the efforts invested in promoting the rights of the players by a forum that has the unique expertise and skill to do so.
- Although the necessary parties have achieved the most respectable achievements, which the Tribunal welcomes, we are of the opinion that the existing legal situation applies to the disputes at hand, as detailed above, for the following reasons:
First, in the absence of the consent of the direct parties to the proceeding, it is not possible to give effect to the agreements of the parties required in this proceeding. However, the necessary parties have a way to validate their agreements within the framework prescribed by law.