‘Complicated and uncertain’ – Folau case raises problems for Rugby Australia

The devoutly Christian player has opted to challenge a decision to terminate his multi-year, multi-million-dollar contract with the Wallabies and NSW Waratahs over homophobic social media posts.

Rugby Australia contends Folau, 30, committed a “high-level” breach of the players’ code of conduct by failing to adhere to its policies and values, but freedom of speech and religious freedom issues could form part of his defence.

The row will go to an independent three-person tribunal which will determine whether he has made a breach and, if so, what punishment is appropriate — ranging from a fine to a suspension or being fired. No date has yet been set.

It may not end there, according to experts, with an appeal possible afterwards and the prospect of protracted, and costly, court hearings.

Former NSW Supreme Court judge Anthony Whealy said the case was a legal and moral minefield.

“The topics of religious discrimination, discrimination against gay people and the right of employees to express personal opinions on social media raise complicated and uncertain issues,” he wrote in an op-ed published in the Sydney Morning Herald on Thursday.

– ‘Fumbled the ball’ –

He said the position of Folau, who asserted on his Instagram account that “Hell awaits” “drunks, homosexuals, adulterers, liars, fornicators, thieves, atheists, idolators”, was complex.

“Clearly he speaks from a genuine and deeply held religious conviction,” he said.

“He is otherwise a person of exemplary character and his opinions, while plainly offensive to some, are more or less consistent with a point of view not uncommonly expressed in churches and mosques around Australia.”

On the other hand, it will be argued that Folau is in breach of his employment contract, or at least Rugby Australia’s code of conduct.

“As to the first argument, it seems likely that there is no specific provision in his contract prohibiting him from expressing publicly his religious convictions,” Whealy said.

“As to the second argument, its success will depend on whether he has brought the game into disrepute and whether he has breached his employer’s inclusion policy.”

Wayne Smith, who has written about rugby for decades in The Australian newspaper, said it appeared that Rugby Australia may have “fumbled the ball” when re-signing Folau last year after a similar controversy, with no social media clause in his contract.

Castle, however, has said Folau did receive a formal letter outlining his social media responsibilities, along with verbal warnings.

– Unfair dismissal –

Potentially muddying the waters is that three other players have fronted code of conduct hearings in recent years — Kurtley Beale, James Slipper and Karmichael Hunt.

They were charged with incidents that brought the game into disrepute — inappropriate text messages or drug use — but, as Smith noted, were allowed to stay in the game, whereas Folau’s “crime” was quoting the Bible.

Regardless of the outcome, rugby’s reputation has taken a hit.

The Wallabies’ biggest sponsor Qantas —- whose chief executive Alan Joyce is openly gay –- called Folau’s comments “really disappointing”, while reports have speculated that some sponsors could walk away if the player isn’t sacked.

Even if Folau loses, he may sue for unfair dismissal. A legal fight could be avoided by paying out his contract, but either way it shapes as a costly exercise.

While Folau — once the sport’s most marketable player — has rallied some support, there is little sympathy from former Wallaby Drew Mitchell, who accused him of hypocrisy.

He posted on Twitter this week comments from Folau on the Players Voice website last year when he was embroiled in the earlier scandal, for which he escaped sanction.

“I told Raelene if she felt the situation had become untenable — that I was hurting Rugby Australia, its sponsors and the Australian rugby community to such a degree that things couldn’t be worked through — I would walk away from my contract immediately,” Folau wrote.

Mitchell said: “I would hate to think Izzy is a liar because we know what happens to them.”