Inside the hearing: The fatal mistake that crucified Israel Folau

Israel Folau had been expertly sidestepping a crucial question while under intense cross examination from Rugby Australia’s top lawyer - that was until the former Wallaby made a monumental error.

• Chapter One: How Folau’s fate was sealed by his dad

• Chapter Two: Folau believed Rugby bosses set him up to fail

Read part three of The Sunday Telegraph and Daily Telegraph four-chapter special on the Israel Folau saga.

It was the moment that sunk Israel Folau’s rugby career.

Under intense cross examination from top lawyer Justin Gleeson SC on the first day of his code of conduct hearing, Folau made the fatal acknowledgment.

Asked if he understood that his social media posts could offend people, Folau, who had been expertly manoeuvring around the admission by repeatedly pointing back to the words being from the Bible, finally said he did.

The next morning, a Sunday, Folau’s lawyers walked into the hearing and stunned Rugby Australia’s silks by admitting to a low-level breach of the player’s code of conduct.

Gleeson then continued to grill Folau over the remaining two days as to whether, having admitted to the breach, he could take his post down and guarantee he would not make a similar post in future.

‘He should not be cut’: Pastor backs Folau

Inside the Rugby Australia and Israel Folau hearing.

Folau, already believing he would go to hell if he deleted his post, could guarantee neither.

He admitted guilt to an offence, but would not take steps to rectify that offence, and gave no promises he would not commit another offence.

The case was done at that moment.

The judicial panel consisted of John West QC, Kate Eastman SC, and John Boultbee AM.

Folau’s legal team had attempted to get Eastman removed from the panel, because she’d represented Australian rugby in their case to terminate the contract of Kurtley Beale in 2014.

Ironically, Boultbee, the Folau team’s pick for the panel, had sat on the tribunal of that Beale hearing, ruling on the sexually explicit image he’d sent ARU staff member Di Patston, and had voted against terminating Beale’s contract. Beale was ultimately fined $45,000.

Eastman was kept on this panel because under the rules of assembly, both sides could only rebut the chair, and both agreed to West.

Israel Folau leaves the Code of Conduct. Picture: AAP

The panel recognised the impossible position of Folau’s employers RA and the Waratahs if Folau remained employed and continued his religious social media crusade, resulting in the loss of millions in sponsorship dollars.

By 2pm on Tuesday, May 7, the third day of the hearing, after Folau had reiterated he would not remove his Instagram post, the panel ruled that Australia’s highest-paid rugby star was guilty of a high level breach.

They did not hand down the sanction of contract termination until 10 days later, but termination was the inevitable outcome.

LOSING HIS FAITH

Folau always felt the cards were stacked against him by what transpired in the days leading up to the hearing.

It is why after the panel’s decision was announced on May 17, Folau said he would not seek an appeal of the ruling because: “I simply do not have confidence in Rugby Australia’s ability to treat me fairly or lawfully throughout this process”.

Instead, he is considering legal action against RA for unfair dismissal due to religious discrimination under the guidance of Melbourne workplace law specialist Stuart Wood QC.

Clutching his Bible, Folau walked into the first day of his code of conduct hearing on Saturday, May 4 on the first floor of RA headquarters in Moore Park.

He sat at the back of the room beside his team of lawyers; Ramy Quatami and Bechara Shamieh from law firm Marcus Madison, and Greenway Chambers barristers Adam Casselden and Dilan Mahendra.

Justin Gleeson SC. Picture Kym Smith

Casselden was arguing Folau’s case.

Across the room, alongside RA boss Raelene Castle, Waratahs chief executive Andrew Hore and Wallabies coach Michael Cheika was RA’s expert legal team.

Gleeson, assisted by fellow Banco Chambers barristers Adam Hochroth and Naomi Oreb, also had the help of Herbert Smith Freehills executive counsel Shivchand Jhinko and senior associate Sophie Beaman.

“Castle gave evidence about the numerous meetings she and other rugby officials held with Folau after his 2018 Instagram comment that gays were going to hell unless they repented,” an insider said.

“She testified that she’d told him future posts of a similar nature would result in serious consequences.

“Cheika told the panel he’d met Folau last year to discuss the issue and was convinced by the player that future controversial posts would not occur.

“Cheika also said Folau had breached the trust of his Wallabies teammates for a second time, and that his preparations for the World Cup was being built on trust, so he’d find it difficult to bring Folau back into the team.

“Folau countered by giving testimony that he was never specifically told what he could not post along religious grounds, that in those meetings with Castle and others he reinforced that he would not back down from his beliefs, and that the offending post of April 10, 2019 was merely a quoting of Biblical scripture that he was sharing out of love for others.

Israel Folau's Instagram post after Rugby Australia’s decision to terminate his contract. Picture: Instagram

“Casselden presented a compelling case of a player who held deeply Christian views, had told his employer he answered to God first, that he was not sanctioned over the 2018 comment, was given no additional training in how to express his beliefs in future, and that not once was he told he could not reproduce Biblical material on social media regardless of content.”

But Gleeson expertly walked Folau into his crucial error.

“Gleeson was extremely persistent, coming at Folau from different angles, but clearly with an end goal of having him admit that he knew he would offend some people with the post,” the insider said.

Gleeson used the example of how millionaire private donor Paul Salteri, who had been topping up Folau’s salary to the tune of $250,000 a year, withdrew that money immediately after his 2018 comment.

Folau could not claim to be unsure of how his comments could have a direct impact on the finances of rugby, Gleeson argued.

BRAND UNDER ATTACK

ASICS had dumped Folau as a brand ambassador before the hearing, although this was not publicised until after the decision to terminate his contract was announced.

This, and revelations that rugby’s broadcaster Fox Sports had pulled Folau’s poster down from their office foyer in Artarmon, was further clear evidence of the negative impact his post had on the game.

When Folau finally relented and conceded an understanding that his post would offend, his lawyers rallied to put together a new strategy, admitting to a low-level breach the next morning and offering new solutions to save his career.

Folau and his wife Maria secretly met with a religious leader on the Monday – the day between the second and third sitting of the tribunal — seeking guidance about social media use that would allow him to express his beliefs without putting his employers in jeopardy.

Rugby Australia chief executive Raelene Castle testified at the hearing that Folau was told offensive posts would not be tolerated.

All of it was in vain because of Folau’s refusal to take down his post, which the panel deemed an “ongoing breach” because while ever it remained up, it continued to damage his employer.

RA’s lawyers eventually dropped their pursuit of Folau breaching their code in relation to “discrimination, harassment and bullying”, and also in “duty to co-operate”.

But they argued he was guilty of a total of 10 breaches of the code.

The panel ruled that Folau was not guilty of three; behaving in a manner inconsistent with the values of the game, disrespecting people, and acting against the best interests of the game.

However, they deemed him guilty of seven breaches, which included bringing the game into disrepute, not taking reasonable action to protect the game from discredit and criticism, and making public comment detrimental to the interests of the sport.

Folau was sacked on May 17, becoming the first athlete in the world to lose their contract for posting religious-related material on social media.