National Insurance Institute (Jerusalem) 60260-10-10 Oved Zaken v. National Insurance Institute

June 22, 2014

Introduction

1. This proceeding concerns the plaintiff's claim against the defendant's decision (hereinafter: the Mossad) of October 5, 2010, to dismiss his claim for injury compensation. This is because, at the time of the accident, he was not insured as a salaried employee, according to section 75(a)(1) of the National Insurance Law [Consolidated Version], 5755-1995 (hereinafter: the Law or the National Insurance Law).  As part of this proceeding, the question of the existence of an employment relationship between a soccer player in an amateur team and the team in which he trains resurfaces.

The parties to the proceeding

2. Before we turn to a review of the factual basis that has become clear before us, we will discuss the identity of the parties to the hearing; The plaintiff, Mr. Oved Zaken, is a soccer player who claims to be insured in the work injury industry. The defendant, the National Insurance Institute.

Katamon Fan Club - is an association that manages the "Hapoel Katamon Jerusalem" soccer team (hereinafter: Hapoel Katamon or the team), in which the plaintiff trained.  Simultaneously with the filing of the statement of defense, the institution, taking into account the provisions of section 369 of the law, requested that it be allowed to send a third-party notice to Hapoel Katamon.  This is in light of the Mossad's argument that to the extent that the employee-employer relationship between the plaintiff and the soccer team is recognized, the latter will be liable for the retroactive payment of the insurance premiums in favor of the plaintiff.  In the event that the accident underlying the claim is recognized as a work injury, the group will be forced to indemnify the institution for all the amounts of pensions that it will be obligated to pay in connection with the plaintiff's injury.  In the court's decision of January 16, 2011, the group was added as a third party in the case.

The Israel Football Association is appearing in the proceeding as an amicus curiae.  This was when it became clear that the determination of the existence of an employee-employer relationship between the plaintiff and Hapoel Katamon may have an impact on the conduct of the amateur teams in Israeli football, and taking into account the directive of the National Labor Court in a similar case (National Insurance Institute (National) 327/99 National Insurance Institute - Kabaha [published in Nevo] PDA 36 877 (2001) (hereinafter: the Kabaha case).

3. Three evidentiary sessions were held in the proceeding. He himself testified on behalf of the plaintiff.  From the outset, the plaintiff submitted an affidavit on behalf of another witness, Mr. Yaniv Avrahami, who is alleged to have trained with him for many years and also at Hapoel Katamon.  However, when the witness did not appear for questioning about his affidavit, the affidavit was withdrawn from the court file.  On behalf of Hapoel Katamon, the testimonies of Mr. Lior Zada, the team's coach at the relevant time of the accident, and Mr. Uri Sharetsky, the team's general manager, were heard.  The Football Association's position was submitted in writing and completed orally by its attorney, Adv. Moshe Avivi, at the meeting of the Football Association on January 2, 2013.  The parties concluded their affairs in writing.
4. At the request of the parties, at the preliminary session of the Tribunal on December 19, 2011, the proceeding is clarified in a single session. It is alleged that due to an error, the names of public representatives were recorded at the top of the minutes of July 11, 2012, but they were not present at that meeting.

The factual basis as it became clear in the testimonies before us is as follows:

5. The plaintiff, born in 1977, has been playing soccer since childhood. At the age of 9 he joined Hapoel Jerusalem and after his enlistment for regular service in the IDF, he played in its senior team.  The plaintiff continued to play soccer intermittently even after his discharge from the IDF.  The plaintiff works full-time as a field technician in the customer service department, in the private division of Bezeq, Israeli Communications Company Ltd.
6. During 2009, Hapoel Jerusalem fans established a new team owned by them, the third party before us. This is an impressive social enterprise.  During the month of May 2009 (p.  32, line 19), the team was registered with the Football Association in the third division.  Mr. Zadeh was hired to coach the team and began casting the players (p.  15, lines 20 ff.).  I would like to emphasize that in view of the fact that the team is a new team that does not continue its path from the previous season, Mr. Zada is required to take care of filling all the positions in the team.  He did this by contacting football professionals and by relying on his personal acquaintance with potential players he had coached or played alongside in the past.  In other words, by way of an initiative on his part to the players to join the team's ranks.  In addition, he received requests to join the team from talented players.  In his view, it was "a very well-publicized team in terms of the third division" (p.  22, line 31).  There is a deep dispute between the parties as to whether Mr. Zadeh approached the plaintiff with a request to join the ranks of the group or whether it was the plaintiff who asked to join the ranks of the group.  We need to address the matter later.
7. On a date that has not been fully clarified, during the month of July 2009, the team that was formed began training in preparation for the soccer season, which was expected to continue from September to the end of April 2010 (p. 36, line 3).  In view of the fact that this was the team's first season, the training phase lasted a little longer than usual (p.  17, line 13).
8. The plaintiff began training in the ranks of the team. The training was conducted four times a week for an hour and a half.  According to the plaintiff's testimony before the Mossad investigator, after a month of training, the trust meetings were reduced to three meetings per week (N/1, p.  4, lines 84-85).

Training for a soccer season includes training games that fall within the framework of the same six hoursa week (p.  21, lines 8-9).  These are games between amateur teams that are not connected to the organized activities of the Football Association or the League.  Games in which the refereeing is not the responsibility of the association's referees, as their name implies, are intended for training purposes.

9. On August 27, 2009, the first game of the season was played between Hapoel Katamon and Aliyah Kfar Saba at a field in Kfar Saba. During this game, the plaintiff was injured in his right knee and required medical treatment.  At the time of the proceeding, the plaintiff testified that as a result of the injury, he did not return to playing soccer.
10. At the time of the injury, no written employment contract was signed between the plaintiff and Hapoel Katamon and he did not receive any payment from it. Hapoel Katamon's letter dated February 14, 2010 (Appendix 3 to the plaintiff's main testimony affidavit) states that "an old employee was supposed to play for the team as a volunteer in exchange for expenses of ILS 700 per month, starting in September 2009, but due to his injury he was prevented from doing so."
11. At the beginning of the team's numbers, the trainees were registered with the Football Association, meaning that a 'player card' was opened for them and they were insured in accordance with the Sports Law.
12. As stated at the outset, for his injury, the plaintiff filed a claim with the institution for payment of injury compensation. The claim was dismissed on October 5, 2010 on the grounds that according to the Mossad, there was no employee-employer relationship between the plaintiff and Hapoel Katamon, and therefore the plaintiff does not fall within the category of 'insured' for the purpose of receiving injury compensation.  Hence the lawsuit beforeme.

The Industrial Context

13. For the sake of completeness, Iwill also briefly discuss the broader industrial context as presented to us by the Football Association. The association itself is an association that coordinates the football industry in Israel.  She is a member of the World Federation of Football Federation (FIFA), and has been certified to manage the sport of football in Israel.  As part of its role, the Association brings together the activities of all the adult groups participating in the competitions organized by it.  According to the Association's registration regulations, soccer teams in Israel are divided into 'professional teams' and 'non-professional teams'.  The professional teams are the teams that play in the Premier League and the National League.  This is about 30 teams.  The amateur teams participate in League A, League B, League C, Youth, Boys and Children's Leagues, and Women's Leagues.  The C League includes about 112 teams in 7 to 9 districts.
14. The professional teams are under the supervision of the Association's Budget Control Authority, and their activities are regulated in the Association's budget control regulations. The duties imposed on a professional team include, inter alia, submitting a budget proposal in accordance with the guidelines of the regulations, providing collateral to ensure the implementation of the budget, submitting annual financial reports and signing agreements in the form set out in the regulations with the players and coaches.  Regarding the status of the players of the professional teams, it was determined that these are employees who receive wages for which income tax and social security payments are set aside according to the law.  At the same time, the player-employee is obligated to report to all the team's training and games, to maintain a sporting lifestyle, to make the most of his abilities for the benefit of the team, and to obey the instructions of the coach and management.

The Association's budget control regulations, including the provisions reviewed above, do not apply to amateur teams.  As a result, the status of players in amateur teams is different from that of players in a professional team.  However, some amateur teams may sign agreements with some of the players, usually those who have a professional past or the potential for professional advancement, to form the backbone of the team.  These agreements regulate the relationship between the player and the team in terms of salary and the player's commitment to the team, and they are common mainly in teams playing in the first division that aspire to become a professional team.  Mr. Sharetsky clarified in his cross-examination that a team that succeeds in qualifying from the first division may receive a high grant from the state (ILS 2 million) (p.  39, lines 16-17).

15. Hapoel Katamon also chose to contract in the first season with a number of players under employment agreements. In Mr. Sharetsky's estimation, it was with 4 to 5 players who were destined to be the middle bolt of the team.  Mr. Zadeh estimates that they earned between ILS 2,000 and ILS 2,500 per month (p.  23, line 32).  As stated, at the time of his injury, the plaintiff was not one of these.

The Fence of Dispute

16. As explained at the outset, the claim is concerned with the plaintiff's entitlement to injury compensation from the institution. In order to decide the claim, we must determine whether there was an employee-employer relationship between the plaintiff and Hapoel Katamon, and as a result, determine whether the accident of August 27, 2009 constitutes a work injury.

If the answer to these questions is positive, it will be necessary to determine whether the institution is entitled to any payments from Hapoel Katamon, taking into account its claim that the latter did not pay insurance contributions for the plaintiff.