In general, the burden of proving the existence of an employee-employer relationship is on the person claiming its existence. My opinion is that a weighting of all the tests I have listed above and the consideration of the totality of the circumstances leads to the conclusion that the plaintiff has not been able to prove that there was an employment relationship between the parties. My opinion is therefore that there was no employee-employer relationship between the plaintiff and Hapoel Katamon. In these circumstances, an accident that occurred to him should not be recognized as a work injury under the law.
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- Before concluding, I will add that even if I had assumed that the test involved was the one that should have guided us in the ruling, if we apply it to the circumstances of the case, the result will not change. In this regard, I have no choice but to join the rulings of the regional courts in the Bahaa case and in the Levy case. We will add the following comments in relation to the factual circumstances before us.
- It is true that Hapoel Katamon should be seen as a 'factory' in which the plaintiff can integrate, and that Hapoel Katamon actually provided him with a team framework for the soccer game. Thus, this is an inseparable part of the group's main business, and the plaintiff has become part of its organizational system. At the same time, it was not claimed or proven that the plaintiff provided football services outside the team. However, there are no sub-tests except for the test of the supply of tools, in which it can be said that the team provided the players with the necessary equipment for the games: uniforms, balls and a field to play in. According to Mr. Sharetsky's testimony, she intended to provide transportation to official games during the season. I do not find it possible to review all the tests in detail. However, I will refer to those tests that the plaintiff focused.
- The personal connection test: The plaintiff emphasized that in our case, the personal connection test exists, since his participation in the group's activities was made possible by his personal skills and that he could not send someone else to take his place. There is truth in the claim that the plaintiff could not have sent a replacement on his behalf to take his place, but this alone does not testify that the personal relationship test is being met. As you know, 11 players from each team play on the soccer field. Nevertheless, the parties in our case agree that the team's roster counted at least 22 players, inter alia, for the purpose of replacing a player who was absent. As stated above, the plaintiff did not claim and did not prove that he was destined to have a special role in the group that only he could have fulfilled. Therefore, my conclusion is that the test of personal connection does not exist in our case.
- Duration and regularity of the relationship between the parties: The parties agree that the plaintiff began his activity in the group in July 2009, although the exact date was not clarified, and that the accident occurred on August 27, 2009. From the testimonies heard before me, it appears that during July-August 2009, the plaintiff reported to the team's training and games at a frequency of 3-4 times a week. Prima facie, we should have concluded from this scope of activity that the relationship between the parties tends to be the same as that of an employee-employer relationship. But I got the impression that this was not the case. It became clear that Hapoel Katamon's conduct in recruiting the players was derived from the assumption that the level of commitment of the players to it was not high (p. 36, lines 23-25). What's more, contrary to what is customary in professional soccer teams, and as we have shown above, no restrictions have been imposed on the team's players in relation to other occupations or the possibility of playing for another team at the same time or moving to another team during the season. At the same time, it has not been claimed or proven that Hapoel Katamon undertook to provide any of the players with a permanent framework for activity, certainly not at the initial stage when the accident occurred. In light of the above, my conclusion is that neither the players nor the team saw themselves as committed to each other in real time, similar to the obligation in which both the playersthemselves are parties to an employment relationship.
- How the parties viewed their relationship and how they were presented to third parties: It can be said that there is a great deal of disagreement between the parties on this question. According to the plaintiff, he saw himself as an integral part of Hapoel Katamon and his activity in it as an activity of economic benefit for the purpose of providing for his family (p. 11, lines 24-26). According to the plaintiff, it was only because of the accident that a contract was not signed with him regulating his status as an employee of Hapoel Katamon. In any event, even if he had received only a low salary, as the group claims, he should be regarded as an employee of the group. Hapoel Katamon, for its part, claims that in the seasons preceding the accident, the plaintiff did not play actively, and therefore at no stage did it intend to employ him as an employee. In the summaries, she even claimed that at the time of the accident there was even doubt about his future in the group, an argument that, as I have already detailed, I cannot accept it in light of the testimonies of the witnesses on its behalf. In any event, according to Hapoel Katamon, the relationship between her and the volunteer actors does not establish an employee-employer relationship.
The plaintiff, who has the burden of proof, failed to prove his claims. Thus, the plaintiff did not produce even the first evidence that it was only chance that caused the employment contract not to be signed with him; He did not attach evidence attesting to his professional seniority; He did not prove that his professional seniority is in line with the seniority of the players with whom Hapoel Katamon signed the employment agreement; He also did not bring any of the players who played for the team in the 2009-2010 season, whether paid or not, to testify to support his claims that the parties viewed the relationship with the team as an employment relationship. The plaintiff's testimony in all these matters was the only testimony that was not supported by external evidence and therefore I am unable to accept it.