Israel Folau ‘admitted breach, offered apology’

Israel Folau ‘conceded he had breached RA’s code of conduct’ over his social media posts.

Israel Folau outside a Rugby Australia hearing. Picture: Getty Images

Sacked rugby star Israel Folau conceded he had breached Rugby Australia’s code of conduct over his controversial social media posts and offered to make a public apology, according to court documents lodged by the sporting ­organisation.

Details of Rugby Australia’s defence to Folau’s claims he was unfairly dismissed in the wake of his Instagram and Twitter posts stating gay people would go to hell were revealed on Wednesday. “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,” Rugby Australia said in its defence filed in the Federal Circuit Court.

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“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.

“Such a principle, if accepted, would constitute a radical extension of the common law and would cut against fundamental principles of freedom of contract.”

Rugby Australia claimed the principle would render “unworkable” codes of conduct routinely used 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,” it said. “The court should not accept that any such principle is or should be a part of the common law.”

Rugby Australia claimed Folau routinely posted religious content on social media and it ­objected to the two posts because of their “tone and attributes”, not because of the ­religious content.

“Rugby Australia fully supported Mr Folau’s expressions of his faith, both on and off the field, provided that these were done in a respectful and inclusive manner, consistent with its values,” it said.

Folau began playing rugby union in 2013 and signed a player contract in 2015 with a base salary of $1.035m as well as match payments. According to RA’s defence, he was also given a share in NSW Rugby’s bonus scheme and his private company, Folau Investments, was to receive $2.415m for image rights and $750,000 for Folau being an Australian rugby ambassador. Under a renegotiated 2018 contract, Folau was to be paid a base of $4.8m over the course of four years, plus match payments and additional payments of up to $900,000.

Rugby Australia claimed Folau had conceded he had breached the code when he ­appeared before the code of conduct tribunal in May and that his posts relating to transgender and gay people had the potential to ­offend particular groups of people. He also conceded the posts had the potential to damage Rugby Australia’s relationship with sponsors, the organisation claimed.

According to Rugby Australia, Folau also conceded that its chief executive Raelene Castle had made it clear to him last November that it was “simply not on” to post material similar to his April 2018 post that gay people would go to hell unless they repented.

“The (2019) posts were a particularly egregious breach of trust by Mr Folau, given that they followed a similar social media post … which prompted a similar outcry, and following which Mr Folau gave repeated assurances to Rugby Australia … that a similar incident would not happen again,” Rugby Australia court documents ­stated.

In April this year Folau made an Instagram post suggesting people living in sin, including ­homosexuals, would go to hell ­unless they repented. “Mr Folau, in his evidence ­(before the tribunal), conceded that people who are homosexual, or who had a homosexual friend or a child struggling with homosexuality, may have been offended by the 2019 Instagram post and that he understood that at the time of making it,” Rugby Australia claimed.

Folau also conceded transgender people may have been offended by his Twitter post that called on them to “REPENT and turn away from your evil ways”, ­according to Rugby Australia’s claim. “Mr Folau, in his evidence, ­offered to make a public apology for the 2019 posts,” the court documents state.

Rugby Australia claimed Folau said he would refuse to take down the two social media posts if directed to by Rugby NSW or Rugby Australia. However, going forward, his social media posts could be subject to prior ­approval by Rugby Australia.

“Mr Folau submitted that the specific nature of the 2019 posts and Mr Folau’s ‘right’ to make such posts were matters about which the community and public opinion was divided,” Rugby Australia claimed. It said the risk of Folau repeating his conduct was an important part of the tribunal’s decision to terminate his contract.

A second respondent to the matter, Rugby NSW (known as the Waratahs) also filed its defence, claiming that it had spoken to Folau in 2018 after the earlier “similarly homophobic” social media incident and that “he understood” it was the “kind of conduct that could not be tolerated given the commitment to inclusiveness in rugby”.

“ (Folau) was the face of rugby in Australia, had been promoted as the face of rugby and paid handsomely as the face of rugby,” the Waratahs claimed.

They further claimed Folau’s publishing of the 2019 posts breached the NSW Anti-Discrimination Act and the ­organisation could have been held liable. Folau launched legal action in the Federal Circuit Court against Rugby Australia and Rugby NSW in July seeking an apology, $10m in damages and the reinstatement of his contract.

Israel Folau at Waratahs training this year. Picture: Getty Images