Can Rugby Australia punish Israel Folau and come out victorious?

The late Robert Fitzgerald Kennedy once said, “I am deeply impressed with the gravity and wisdom with which most federal judges approach the responsibility of sentencing. It is a difficult, soul-searching task at best.”

Despite being found guilty of breaching Rugby Australia’s Code of Conduct, with punishment awaiting for that now infamous social media post, I can’t but help think that Rugby Australia is losing this conflict with its fallen star Israel Folau. Think about it folks, do you really think that the punishment, whatever that may be, will be the end of the issue? I suggest not.  The longer this issue draws out Israel Folau appears to be in the stronger position.

‘Folau-gate’ has affected the Wallabies and Australian rugby community itself to the point that post the Queensland Reds and Melbourne Rebels fixture last Friday evening, approximately a dozen players – some from the Reds, some from the Rebels – joined as one in a prayer circle.  Why exactly they did this is open for interpretation, however, considering the social media support already shown by fellow players Samu Kerevi and Taniela Tupou, and with most participants of the prayer circle being of Polynesian heritage, it appears a timely message to all that Christianity is part of the fraying fabric that is Australian Rugby. It is not going away and Rugby Australia must find a way to understand it as to not would fail to comply with the diversity the organisation aims to achieve.

The position from Rugby Australia is that employees are free to practice their religion, yet Israel Folau finds himself on the cusp of losing his livelihood by posting a biblical passage and a subsequent paraphrase of that passage. Furthermore, it is understood that other Wallabies have ‘liked’ the said post, yet they are not subject to any disciplinary action. From this, it appears Rugby Australia is amenable to its employees liking such a post but considers posting such content as a ‘high level’ breach of its Code of Conduct. It’s a fine line on which Rugby Australia walk.

Yet it is not only parts of the current playing group that support Israel Folau, but icons of the Australian game such as Nick Farr-Jones and Alan Jones are also publicly supporting the fallen fullback. To some that may mean nothing, yet there have been few greater halfbacks ever than Nicholas Campbell Farr-Jones who is still revered globally for his exploits on the rugby park. When Nick speaks, people listen.

It has been reported during the week that Farr-Jones believes Israel Folau, whose version of events does not appear to be consistent with that of Rugby Australia CEO Raelene Castle and current Wallaby Coach Michael Cheika.

Farr-Jones said, “But from the 90 minutes I had with Israel, and I strongly believe him, he was basically told by Cheika once, not four or five times as the coach would say in his statement. He was basically told do it in a non-offensive way. You can continue to communicate like this and communicate your faith, just do it in a respectful way.

“And it was the same with the chief executive. After meetings last year, after the first post that seemed to offend everyone, certainly the media, he had a meeting with the chief executive, or at least the chief executive Raelene Castle came out and gave a press statement which greatly offended Israel as to the truth of that press statement.”

So, now it appears Rugby Australia finds itself, on this issue at least, in opposition with the first Australian ever to lift the William Webb Ellis Trophy only a matter of months away from the 2019 Rugby World Cup. Hardly a position the organisation would seek considering the weight Farr-Jones also holds in the corporate world as a Director of Taurus Funds Management.

Former Wallabies captain Nick Farr-Jones. (Photo / Simon Bruty/Allsport)

The man who selected Nick Farr-Jones into the Wallabies in 1984 from relative obscurity was Alan Belford Jones, who since his Wallabies coaching days has forged a career in the media and is now one of the most influential voices in Australian society. Love him or hate, the public still listen to him.

The Sydney-based broadcaster has long had Rugby Australia in his sights for various reasons but he has informed the public that despite the guilty verdict, the fight has just begun. Does Rugby Australia have the nous and funding to take on Jones and the support he is likely to garner from the religious and free speech organisations throughout the land? I sincerely doubt it.

As for the playing of the game itself, Folau’s provincial side, the New South Wales Waratahs, have not exactly blossomed since Folau was stood down from playing duties several weeks ago. In fact, the Waratah’s have won only one of their last four matches without Folau’s services and are currently the last-placed Australian side in their respective conference.

It is accepted that two of those losses have been on-the-road in South Africa to the Lions and the Bulls, and perhaps the use of Folau’s services may have been enough to change the result, perhaps not? But I suggest that if you were willing to pay a player one million dollars a season, you think that player would be of some significant service to the team considering few rugby players in Australia can demand such a salary from the financially-challenged Rugby Australia.

Whilst names such as Kurtley Beale, Jack Maddocks, Tom Banks, Dane Haylett–Petty and Reece Hodge may be able to the job for the Wallabies, have any of them recently signed a million-dollar-a-year contract for four years? It shows what value Folau recently held in the eyes of Rugby Australia.

It is apparent that without the leading try-scorer in the history of Super Rugby, New South Wales have struggled. With Sydney being the largest city in Australia, Rugby Australia is not currently in a position of strength considering the Waratah’s will struggle to attract crowds when they are at risk of not playing finals rugby and are not winning matches. This is more than a mere distraction; the success of Waratahs Rugby has eroded since Folau’s standing down.

Then comes the issue of the ramifications of whatever punishment is fashioned and handed down to Israel Folau. Again, I can’t see the winning of it for Rugby Australia. If the punishment is to be his sacking, it is understood that this sacking will be subject to an appeal through the Federal Court of Australia. So, the issue will not be dead and buried as many would hope. I strongly suspect Alan Jones will broadcast and write about the issue whilst not missing Rugby Australia along the way. It’s not a position Rugby Australia can afford from a public relations point of view, nor financially.

Then comes the issue of not sacking Folau and imposing a fine and or a suspension. Again, Folau may or may not choose to contest such a punishment, but I suggest he would. He appears to be a man of deep principle and faith. Rugby Australia would have to fight a battle on multiple fronts as initially, it intended on sacking Israel Folau, any reneging on such shows them as week. Furthermore, what does that say to their sponsors such as QANTAS? Will QANTAS want to remain as a sponsor of Rugby Australia if Folau is to remain in the employment of Rugby Australia?

Within the punishment itself, Rugby Australia can’t make Folau remove the post that led to the breach of the Code of Conduct. It can punish him for it, but not make him remove the post that is understood to remain as originally posted. So, if Rugby Australia were to sack him, and if Folau were to win any subsequent court action and regain employment, the post will still remain. That would also likely be the case if Folau was only suspended. The post would remain.

Whilst it could be argued if only suspended that Folau should be breached again for keeping the post intact, would that not also invite the legal principle of double jeopardy where a person cannot face proceedings of a second offence on the same facts to which they have already faced proceedings on. If Folau were to take it down and repost, then perhaps, but if he just leaves it as is and is only suspended, I would suggest Folau has won the day. He can play the long game on this issue, Rugby Australia can’t afford to. This would be a total embarrassment to Rugby Australia, and no doubt those who pushed this issue may find themselves removed from employment.

The more I consider the issue the more I find congruence with that of the great American heavyweight boxer Mohammad Ali and his legal battles with the Government of the United States of America.  Ali’s resistance to fighting in the Vietnam War, as required by conscription law, was based upon his religious beliefs and by doing so Ali committed a felony crime, was subsequently charged with his boxing license being suspended and his title removed. Ultimately Ali won his legal battle after it was considered by the Supreme Court of the United States of America due to Ali’s own understanding of the Muslim faith. Mohammad Ali is considered one of the most momentous figures of his time.

Yet Israel Folau has not been charged with any felony or even a misdemeanour, but he finds himself in a precarious position where his current employer has announced their intention to sack him. Furthermore, the National Rugby League has effectively informed Folau that he is not welcome in their code either.  All this due to Folau’s own understanding of his Christian faith and his understanding of his employment contract. If Israel Folau were an American citizen and this issue occurred on US soil it appears, he would not only be protected by the constitution of that country but also by the precedent in the case of Ali and the Government, yet in Australia he faces punishment.

I am not really sure what I’ll think when next at a Wallabies test match singing “Australians all let us rejoice for we are young and free”. The freedoms Australian people enjoy to be free from homophobia are essential but as equally essential is the freedom to express and to practice a religious faith at home and in the workplace. Rugby Australia have navigated themselves close to the rocks on this issue with the swell of discontent on the near horizon.

The soul of Australian rugby and perhaps even our society is in play on this issue as there are cogent legal and moral arguments for those on either side of ‘Folau-gate’.  Those handing down the punishment to Israel Folau should heed the words of a great American, Robert Fitzgerald Kennedy, and consider the gravity of what is at stake and punish wisely, but in any event, Rugby Australia is in a losing position as this issue will not go away any time soon with no upside in sight.

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