Hapoel Katamon further argues that accepting the plaintiff's claim in the sense of determining the existence of an employment relationship between it and the plaintiff is likely to collapse the future of the amateur leagues in Israel, since it entails imposing high costs on the shoulders of the teams that exist only on meager budgets, while the relations between the players and the clubs are not at all binding. In this regard, Hapoel Katamon mentions that it fulfilled its duty to the plaintiff by insuring him with insurance that even compensated him for the injury. In light of the above, Hapoel Katamon is of the opinion that the lawsuit is dismissed.
The Association's Position
- Beyond its explanations regarding the 'industrial connection' as presented in the factual chapter, the Association is of the opinion that as a rule, the activity of a player in an amateur team is only a hobby, and his livelihood is not from the team. If a player is paid any payments by the team, they are intended to cover travel expenses and the like. Therefore, and without expressing a position on the specific circumstances of the present proceeding, the Association's position is that the relationship between an amateur team and an amateur player, as a rule, does not establish an employee-employer relationship. This is with the exception of exceptional cases in which there is no indication of the rule. This position is based on an examination of the relationship between the parties in light of the tests set out in case law for examining the existence of an employment relationship, which shows that there are usually no contractual engagements between the parties, no commitment to the team framework, and no authority, supervision or control on the part of the team over its players.
The Normative Framework
- The question of whether there is an employment relationship between a soccer player and the team in which he plays was discussed for the first time in the National Labor Court (National) 38/3-20 "Hapoel" Tel Aviv District, Association for Body Culture - Mordechowitz [published in Nevo] PDA 102 (1979) (hereinafter: the Mordechowitz case). In the Mordechowitz case, the matter of a telephone technician in the Ministry of Communications was discussed, and in parallel to this work, he played soccer for the Hapoel Association since the age of 13. The provisions of the Hapoel Association's bylaws and the provisions of the Association's bylaws apply to the parties' relationship "for the arrangement of payments that are permitted and prohibited for soccer players in the National League and the First League". Notwithstanding what is stated in the provisions of the Football Association's bylaws, the appellant received a fixed monthly payment for his participation in the Association's games and training. The appellant filed a claim for payment of his wages. In the preliminary stage, the question of the existence of an employee-employer relationship between the player and the Association arose as a condition for acquiring the substantive jurisdiction of the tribunal to hear the claim. The Regional Court ruled that there was an employee-employer relationship between the parties. In the appeal, the National Court ruled that there is no employee-employer relationship between the soccer player and the Association on the grounds that his activity is a result of his membership in the Association, unless it is proven that an additional contractual engagement was made between the player and the Association for the performance of actions that deviate from the player's normal activity. Since no contractual engagement was found between the appellant and the Association, it was determined that there was no employee-employer relationship between them. Netanyahu argues that in ruling in this way, the National Court was not required to distinguish between a professional player and an amateur player.
- Since the ruling of the National Court in the Mordechowitz case, there have been changes in Israeli football. Among other things, the occupation of soccer has turned from a mere hobby to a professional occupation of an economic nature. This difference found expression in later rulings of the Supreme Court (see: High Court of Justice 176/90 Machnes v. Minister of Labor and Welfare, IsrSC 47(5) 711, 720-721 (1993). hereinafter: the Machnes case) which is resolved to address the question of the existence of an employment relationship between a soccer player and the team in which he plays.
- In the matter of Machnes, a number of soccer players from the National League and the National League petitioned the Supreme Court, sitting as the High Court of Justice, with a request to instruct the National Insurance Institute to classify them as salaried employees for the purposes of the laws that it is responsible for enforcement. The Supreme Court noted the change that has taken place, as mentioned, in Israeli football. Among other things, he found that in accordance with the Association's bylaws, which have been worded since the Mordechowitz case, each team must enter into an agreement with the player through an employment contract drafted by the Association, which regulates the parties' duties and rights towards each other. The obligations imposed on the player according to the contract include maintaining a sporting lifestyle, following the instructions of the coach and the team's officials, prohibiting negotiations with other teams during the contract period, and more. The Supreme Court ruled that the provisions of the contract embody clear features of an employment relationship, the examination of which in accordance with the accepted tests for examining the existence of an employee-employer relationship, as determined by the National Court, leads to the conclusion that the soccer player is an employee of the team. He held as follows:
"The management, and especially the coach of the team, are authorized to determine and actually determine for the player when he will train, where the training will take place and how he will train. These things are even more beautiful when it comes to team games... It seems that there is no clearer example of the existence of the traditional test in labor law regarding the employee-employer relationship, which has dominated since the beginning of the ruling on this issue...