Later, the National Labor Court also ruled by President (ret.) Steve Adler that in those cases in which it is difficult to apply the mixed test, the purpose test can be applied (Labor Appeal (National) 30027/96 Tzedka v. State of Israel-Army Radio, [published in Nevo] PD 36 625 (2001)). The purposive interpretation of the protective legislation was also adopted by President (ret.) Nili Arad in the context of an invalid contract that was entered into under duress (Labor Appeal (National) 480/05 Ben Shitrit v. Anonymous [published in Nevo] (July 8, 2008)).
- Thus, there are cases, even if exceptional, in which it is difficult to find a definitive answer to the question of the existence of an employee-employer relationship in the framework of a comprehensive evaluation of the mixed test and its sub-tests, even if some of them are met. Then another appropriate test can and should be applied. My opinion is that the circumstances of the case before us are such. In other words, the mixed test is not the most appropriate test for determining the plaintiff's status, and at the very least, it is not the only one. This is due to the special characteristics of the relationship between the parties, which is part of an amateur sport, and in light of the accepted perception that at the basis of the employment relationship is a contractual relationship whose main purpose is the performance of work. Doing the work cannot be a consequence of achieving another goal: the hobby.
- Therefore, the opinionof Y is that in our case it is appropriate to adopt the test detailed below. A test that is appropriate to the circumstances before us. I will acknowledge that I have adopted, with the necessary changes, main parts ofthe test proposed by the Honorable Judge Varda Wirth-Livne in the El Al case.
- Before we turn to the details of the test and beyond what is required, we will add that the mixed test is generally used in situations in which the court is required to determine the status of the person performing the work when the question of the actual performance of the work is not in dispute. In other words, from a factual point of view, it is clear that the person performed any work and the court is required to examine whether it was in the capacity of an "employee", i.e., in a position that guarantees rights within the scope of protective legislation, or whether the work was done as an "independent", "free participant", etc.
As explained in detail in the factual chapter, at the time of the accident, the official football season had not yet begun. This was a preparatory stage. A stage of sorting, training and forming the team for the league season. The plaintiff's participation in the games during this period was intended to test his skills as a soccer player and his suitability for the team. It is true that in the training game in which the plaintiff was injured, he actually played as one of the 11 players on the field, and that even Hapoel Katamon's witnesses agreed that it was not impossible that if he had not been injured, he would have been a member of the team's roster in the same season (p. 22, line 5; p. 33, line 21). However, as long as this was not decided in practice, and nothing was agreed upon with him, as he himself testified before the National Insurance Institute investigator (N1/p. 3, line 59) and before us, the basic assumption of performance of work, in the sense of an employment relationship, is not met. Therefore, my opinion is that the state of affairs described can certainly be suitable for a period of professional training.
- The plaintiff's argument that in the second matter mentioned above, the Regional Court ruled that thedistinction between a practice game in preparation for the games season and the season itself was artificial. However, we are of the opinion that there is a difference between the second matter and the poor. In a second case, a soccer player who entered into a two-year employment agreement with the soccer team in which he played. The accident occurred during the inter-season break, which, according to the court's ruling, was dictated by the employer. As stated, in our case, we are not dealing with the terms of an agreement that the writing employs or the "between seasons" period, but rather the initial formation of a soccer team, and therefore my opinion is that there is room for a difference between the preparation period andthe games and the season itself.
Test Stages
- The first stage deals with the question: Is the purpose of the engagement between the parties to create an employee-employer relationship? The purpose of the engagement between the parties is examined not according to a formal agreement, to the extent that it exists, but in accordance with all the circumstances of the engagement between the parties. In this framework, it is proposed to examine the professional stage in which the athlete comes to train with the team, i.e., whether as an active player or perhaps as someone who has retired and returns to play? What is the player's sports-occupational background? Can it be assumed that the player's contribution to the team will be particularly high, and it can be said that the player is intended to be one of the pillars of the team? Is theathlete intended fora specific role in the team such as goalkeeper or is he intended to be one of the members of the squad? Is this a screening stage or is it the soccer season itself? Was the relationship between the athlete and the team linked following a proactive application by the team to him, or was it in light of a request by the player himself? Does the team commit to the athlete to provide him with a permanent training environment? Did the parties promulgatively agree on any working conditions and was the employment reported to the Tax Authority and the National Insurance Institute?
The second stage examines the natureand nature of the relationship between the parties in the following aspects: supervision and discipline as well as beyond the training hours itself, the degree of commitment of the player to the team and the question of the payment of wages. In terms of supervision, it is possible to use aspects of the control and supervision test. In the obligation between the parties, the question is examined as to whether the fact thatan athlete began training in a certain team is sufficient to prevent him from moving to another team at the stage when the accidental event occurred, God forbid.