New twist in Israel Folau saga

David Skippers

Prior to suing Rugby Australia over his sacking, former Wallabies full-back Israel Folau allegedly agreed his social media posts had breached his contract.

That is according to court documents filed by Rugby Australia in which it is also alleged that Folau admitted the controversial posts would offend gay and transgender people and even offered to make a public apology.

Folau is suing Rugby Australia and New South Wales Rugby (NSW Rugby) for unlawful dismissal after he was sacked for two social media posts in April – one a graphic saying gay people will go to hell, and the other linking “evil” and transgender issues.

In a case before the Australia Federal Circuit Court, the 30-year-old claims he was unlawfully fired for his religious views and is being restrained from playing professional rugby. He is seeking AUS$10 million in damages.

According to a report on Rugby Australia’s official website the Australian game’s governing body – and NSW Rugby as the second respondent – filed their responses to the court on Wednesday, in which they submit Folau’s case should be dismissed.

It rejects Folau’s dismissal was based on religious grounds, but was instead based entirely on the findings of the Code of Conduct Tribunal that Folau had breached his contract.

Interestingly, Rugby Australia also reject Folau’s claim that his professional career is over, saying the termination does not stop from him seeking a new rugby contract in Australia or overseas but he has not done so.

Folau recently announced he would be making a rugby league comeback for Tonga.

The Rugby Australia defence documents provide insight into the promises they claim Folau made about not repeating a similarly offensive post in 2018.

The filings also reveal some of the evidence given in Folau’s Code of Conduct Tribunal in June some of the findings of the independent three-person panel.

The document reveals the four-year contract Folau signed last year was worth AUS$5.7 million.

“The Tribunal was convened after Mr Folau, on 10 April 2019, published two posts on social media which conveyed the message that transgender persons and homosexual persons, respectively, would go to Hell unless they repented of their sins (their sins being that they were transgender or homosexual, respectively),” the Rugby Australia filing states.

“The tone and attributes of both posts were disrespectful to those in the LGBTIQ+ community. The posts attracted widespread negative media coverage and prompted concerns from sponsors, broadcasters and other key stakeholders of Rugby Australia, who felt that the posts did not reflect theirs or Rugby Australia’s values.

“The posts were a particularly egregious breach of trust by Mr Folau, given that they followed a similar social media post, made on 4 April 2018, which prompted a similar outcry, and following which Mr Folau gave repeated assurances to Rugby Australia and the second respondent (Rugby NSW) that he was aware of the impact which the post had had on Rugby Australia, Rugby NSW, their sponsors and his teammates, and that a similar incident would not happen again.”

Rugby Australia argue that Folau conceded before the tribunal that his posts “had breached the Code of Conduct, conceded that the posts had the potential to cause damage to Rugby Australia’s relationship with sponsors, and conceded that he knew, at the time of posting, that transgender and homosexual persons may have been offended by the posts. Despite his concession that the posts breached the Code of Conduct, Mr Folau refused to take down the posts.

“Remarkably, despite his concession before the Tribunal that he had breached the Code of Conduct, Mr Folau now seeks to argue that his posts did not breach the Code of Conduct,” the document says.

The document also claims that, in evidence to the Code of Conduct Tribunal, Folau “offered to make a public apology for the 2019 posts” and submit himself to a pre-approval process involving his employers for social media use.

But the Code of Conduct Tribunal hearing also heard Folau could not guarantee he would not remove the 2019 posts, nor promise to never post similar thoughts in the future, even under such an arrangement.

The Rugby Australia defence rejects Folau’s assertion, which was set out in statement of claim filed in August, that he was terminated because of his religious views.

“This benign conduct, which the community accepts is a recognised fundamental human right and freedom, did not justify any punitive action being taken against him by his employer under the player contract or otherwise. It certainly did not justify Mr Folau losing his career and livelihood,” Folau’s statement of claim said.

“Instead, the respondents did precisely that and terminated the player contract. As a result, Mr Folau is no longer able to play elite rugby in or for Australia again.”

The Rugby Australia defence sets out at length the communications Folau had, both verbally and in written form, with Rugby Australia boss Raelene Castle, NSW Rugby boss Andrew Hore and Wallabies coach Michael Cheika, after the 2018 post in which he also said gay people would go to hell.

The filing asserts by the end of 2018, Folau should have been well aware such posts were offensive and contrary to Rugby Australia and NSW Rugby’s codes of conduct, specifically around inclusion policies. And there would be “significant consequences” if he were to post similar material again.

“Mr Folau, in his evidence, conceded that following the 21 November 2018 meeting, he knew that Ms Castle was making it clear to him that it was “simply not on” for him to be re-posting the sort of message he posted in the 2018 post,” the defence filing says.

The Code of Conduct Tribunal found Folau’s posts had “caused hurt and distress to Rugby Australia, members of which had said they felt personally offended, insulted and publicly bullied by Mr Folau”.

The tribunal also said Folau had failed to consider the “significant adverse impact on the Wallabies team and its members” and that he’d “effectively placed his interests above those of any other person.”

The tribunal said Folau’s unwillingness to remove the 2019 posts – despite acknowledging they caused offence – “appeared to represent a type of blindness to the damage the 2019 posts were doing to his team mates and to represent a breach of trust in the respects spoken about by Mr Cheika.”

The tribunal found the decisions of Rugby Australia and Rugby NSW were only focused on his contractual obligations and “neither the player Contract nor the Code of Conduct restrict or affect Mr Folau’s religious beliefs in any way”.

“Rugby Australia and Rugby NSW were justified in complaining that they should not have to tolerate the risk of Mr Folau’s conduct being repeated,” the document states as a Code of Conduct Tribunal finding.

Rugby Australia rejected the Folau camp’s argument that he was unlawfully restricted from expressing his religion.

“Mr Folau’s principal argument appears to be that there is a general principle at common law prohibiting the making of a contract which restricts a person from manifesting their religion or belief or from imparting or sharing religious information and ideas,” the filing says.

“Such a principle, if accepted, would constitute a radical extension of the common law and would cut against fundamental principles of freedom of contract. Were the principle accepted, it would render unworkable codes of conduct which are routinely put in place by employers to protect their legitimate business interests. In the present case the principle would permit Mr Folau to say with impunity whatever he wants, however offensive, provided it was connected with his religion, notwithstanding the damage he thereby caused to Rugby Australia.”

Rugby Australia also rejected Folau’s claim that his termination is preventing him from earning a living as a professional rugby player.

“The termination of the Player Contract does not prohibit Mr Folau from seeking to secure a new player contract with Rugby Australia and the operator of an Australian Super Rugby team which would enable him to play for the Wallabies and/or an Australian Super Rugby team, and to Rugby Australia’s knowledge Mr Folau has not taken any steps directed to securing such a contract,” the filing says.

“Further that the termination of the Player Contract does not prohibit Mr Folau from seeking to play rugby union for a professional club outside of Australia, such as in Japan, France or the United Kingdom, and to Rugby Australia’s knowledge Mr Folau has not taken any steps directed at playing rugby union professionally outside of Australia.”

Rugby Australia and Folau are due to engage in another round of court-ordered mediation in late November, and a potential trial could be held in February in the Australian Federal Circuit Court in Melbourne.

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