June 24, 2019

Horse 2560 - Israel Folau v Rugby Australia - The Test Case

Back in May, a three member panel held a hearing into a breach of the Professional Players' Code of Conduct by rugby player Israel Folau, in relation to several controversial social media posts.
Rugby Australia had previously warned Israel Folau to cease and desist, citing that it was against the governing body's interests and that his social media posts, amounted to an attack on the LGBTQI community. Finally, after Mr Folau was issued with a conduct breach notice, which recommended his four-year contract worth $4 million be terminated.
Mr Folau subsequently launched a challenge, resulting in the hearing in May and which will probably result in further court action, which is being funded through a GoFundMe campaign.

There are in fact several issues going on at once here and the courts will need to weigh the various issues against each other.

Folau's Claim:

Quite apart from whether you think that what Israel Folau posted was right or wrong, he is entitled to his opinion. It has also been established in Australian case law (most notably Lange v ABC (1997)), that there is a right to free speech and political communication despite what people advocating for a bill of rights will tell you.
This being true, the question then becomes one of what rights does an employer have to fire their employees because of something that they said on social media. The difference between the Folau case and say a shop assistant, is only a matter of the scale of money at stake. The principle is identical.

If this does go to court (which I assume is the intent of Mr Folau) then that question will be put front and centre of his claim. Essentially, Israel Folau is putting forward a case of wrongful termination of employment under Section 772 of the Fair Work Act 2009 and whether or not this qualifies.

Employment not to be terminated on certain grounds
(1)  An employer must not terminate an employee's employment for one or more of the following reasons, or for reasons including one or more of the following reasons:
(f)  race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
- Section 772, Fair Work Act 2009¹

If Mr Folau loses his case under Section 772 of the Fair Work Act, then potentially everything posted on social media by everyone in this country becomes fair game for termination of employment because the defence ceases to exist.
Is what someone says in a private capacity, fair grounds for an employer to sack them, if the employer happens to disagree with them?

Rugby Australia's Claim:

Rugby Australia's claim is also pretty straightforward. Rugby Australia has a published Code Of Conduct, which contains the following:

Treat everyone equally, fairly and with dignity regardless of gender or gender identity, sexual orientation, ethnicity, cultural or religious background, age or disability. Any form of bullying, harassment or discrimination has no place in Rugby. 
- 1.3, Rugby Australia Code of Conduct (2019)²

Use Social Media appropriately. By all means share your positive experiences of Rugby but do not use Social Media as a means to breach any of the expectations and requirements of you as a player contained in this Code or in any Union, club or competition rules and regulations.
- 1.7, Rugby Australia Code of Conduct (2019)²

Their claim is that under the Code Of Conduct and his employment contract which no doubt will have included specific elements in regards to the nature of this, that Israel Folau posted something which was homophobic. Again the question is one of to what extent does something posted by an individual in a private capacity, relate to a contract which they voluntarily entered into.

It can be argued that Israel Folau by virtue of being a rugby player for the national rugby team, and someone who is paid many hundreds of thousands of dollars for doing so, is a very public figure and has gained a very public platform as a result. My guess is that Rugby Australia will need to show that the only reason that Mr Folau has an audience is because of his high profile sports career and that as an organisation in the public eye, they can show a material connection between the things posted on social media by their employees and their public image.

Considering that in the past there have been very public boycotts from advertisers on radio and television programs, as well as sporting organizations, then Rugby Australia would need to establish that they are worried about a potential loss of revenue as a result of Mr Folau's continued comments. In that respect, Rugby Australia would probably ask the chairman of Qantas, Alan Joyce, to testify on their behalf, as Qantas is the headline sponsor of the national rugby team.

The Dilemma:

Should Israel Folau have said what he said? I personally do not think that there are any absolute rights except for the right to life. Israel Folau has said something repeatedly which he knew would annoy his employer and which has openly violated the Code Of Conduct. My personal view is that he should have had the right to express himself and that he shouldn't have done so. Rugby Australia has through their Code Of Conduct, written what amounts to a gag clause; which itself is actually quite chilling.

I do think that we have a right to freedom of speech, expression, and religion, that the right isn't absolute, and that individuals need to think about the consequences of that same right.
Every single thing ever published as part of someone exercising their right to free speech and expression, also allows people to judge you on the content of that same free speech. Israel Folau knew that he was in the public eye and that this had the potential to hand ammunition to his enemies; yet he continued to publish anyway.

What constitutes free speech and whether or not there is a curtain around the public and the private, has always been a contentious issue. It has in the past landed some people in prison and sent others to the gallows. It is worth remembering that Jesus was crucified for exercising what we would consider to be his right to free speech. Maybe Israel Folau won't actually be sent to prison but he will be metaphorically crucified in the court of public opinion for having an unorthodox opinion which he is prepared to publish.

The Folau case is a valuable lesson for Christians and indeed anyone with any religious convictions. The world in principle never actually moves on. It changes its list of acceptable targets from time to time and where Christianity may have been at the centre of public thought and opinion a century and a half ago, that is no longer true.
There must always be some degree of self censure if anyone is to live in the world and be compatible with it. There are always ongoing imperatives to live within the confines of the law, to try to live as peaceable lives as possible, and even to love people who you happen to disagree with. If you feel that you must shake again the orthodoxy of prevailing acceptable opinion, there will be consquences.
I don't know to what degree Mr Folau has said what he has said because of religious convictions, because he wants to advance what he believes is truth, or to what degree he wants to be a firebrand because he can. There are some old proverbs which are applicable though:

If you want to eat fish, expect bones.

If you want to play with fire, expect to get burnt. 



It appears as though GoFundMe has closed Israel Folau's campaign to raise money for his legal fight against Rugby Australia because it violates its terms of service.
Curiously, its terms of service say that:

This list is not exhaustive and we reserve the right to investigate anyone who, in our sole discretion, violates any of the terms or spirit of these Terms of Service. We further reserve without limitation, the right to remove the offending Content, suspend or terminate the account of such violators, stop payments to any such Campaign, freeze or place a hold on Donations, and report you to law enforcement authorities or otherwise take appropriate legal action including seeking restitution on behalf of ourselves and/or our users. Without limiting the foregoing, you agree not to use the Services to:

8. campaigns we deem, in our sole discretion, to be in support of, or for the legal defense of alleged crimes associated with hate, violence, harassment, bullying, discrimination, terrorism, or intolerance of any kind relating to race, ethnicity, national origin, religious affiliation, sexual orientation, sex, gender or gender identity, or serious disabilities or diseases;
- GoFundMe Terms & Conditions, 2nd Apr 2019³

Legally speaking GoFundMe appears to have unilaterally defined this as a "crime" underneath their terms of service despite this being a employment contract and therefore civil.


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