Israel Folau’s Multi-Million Dollar Claim Against Rugby Australia – Baseless, Fair or Excessive?

by Sonia Hickey & Ugur Nedim

Rugby fans around Australia have had mixed reactions to the news that Israel Folau has increased his claim against Rugby Australia to $14 million.

The former Wallabies star and his former employer are expected to attend mediation in the coming weeks.

But is his claim baseless, fair or excessive?

The story so far

In June this year when Rugby Australia cancelled Israel Folau’s contract after deciding that an anti-gay post to his Instagram and Twitter accounts constituted a high-level breach of his contract, the star player initiated legal action, seeking court damages, an apology and reinstatement from both Rugby Australia and his former club, the New South Wales Waratahs.

When mediation was unsuccessful in July, the Fair Work Commission issued what is known as a ‘certificate,’ paving the way for the dispute to be decided in the Federal Court.

Only a few weeks later, as expected, Mr Folau lodged a claim in the Federal Circuit Court. The original claim was for $10 million.

The new claim for damages

Now, in an amended statement of claim published on the Court’s website, Mr Folau has increased that figure by four million dollars, claiming losses and damages consisting of:

  • Player contract from May 2019 to November 2022 of $4.2m
  • Lost guaranteed test match payments adding up to $300,000
  • Lost test match payments for 2022 of $150,000
  • Lost sponsorship revenue of $300,000
  • Lost Israel Folau branded kids’ camp payments of $300,000
  • Additional base salary and other payments of between $1.5m and $3m
  • Losses from the end of his international career of between $500,000 and $4.5m
  • Post-career benefits, including what would have been on offer if he had become captain of the Wallabies, estimated at between $450,000 and $1.25m.

Accusations of ‘bias’

Mr Folau has also made allegations that one of the three members appointed to the tribunal by Rugby Australia to assess whether or not he had actually breached his contract, Kate Eastman SC, should have been recused for apprehended bias.

Folau objected to her appointment because she co-founded Australian Lawyers for Human Rights, and had also been a member of other organisations that had advocated for the LGBTI community, or had an involvement in “the human rights sphere” and that this was not disclosed at hearings.

He further alleges that Eastman acted with bias because there was no attempt by her or the other tribunal members to go through conciliation or mediation before terminating his contract.

But when it first terminated Mr Folau’s contract, Rugby Australia indicated that he had already been warned about his social media content.

The organisation said that after controversy caused by a similar post in April 2018, Folau apologised to rugby chiefs and promised it would not happen again.

Although Mr Folau’s new four-year contract, signed earlier this year, did not include additional clauses regarding social media, Rugby Australia maintained that during several meetings with Mr Folau, Rugby Australia set out clear expectations, and that Mr Folau chose to ignore these warnings, publishing the material regardless of them.

What happens next?

A closed mediation hearing for the case is set down for 2 December. If this fails, the case is expected to go before the courts in February next year.

Legal experts suggest that the case will test an employer’s rights via an employment contract or their employee’s freedom of religious expression. Rugby Australia needs to prove that it did not terminate Folau’s contract based on his religious beliefs, and Mr Folau’s lawyers are expected to argue that RA’s Code of Conduct does not override the constitution.

The federal government is currently fine tuning it’s Religious Discrimination Bill 2019 – a document which prohibits both direct discrimination, treating another person less favourably based on religion, and indirect discrimination where an apparently neutral condition has the effect of disadvantaging people based on religion.

As such, in cases such as the one between Rugby Australia and Israel Folau, as explained by attorney general, Christian Porter, the bill provides “an extra protection to people subject to an employer rule” in circumstances such as Israel Folau’s.

Under the bill, Rugby Australia would have to show financial hardship, such as loss of sponsorship, to avoid a finding that it is discriminatory to impose a condition on Folau not to post on social media about sexuality and sin.

Is the unfair dismissal claim baseless, fair or excessive?

Australians are divided about whether Folau’s unfair dismissal claim has merit and, if so, whether it is fair or excessive.

On the one hand, those against the former star argue that he clearly breached his employer’s code of conduct on more than one occasion, and should bear the consequences; especially in the context of Rugby Australia losing millions of dollars in sponsorships as a result of his conduct.

On the other, his supporters assert that he should not be penalised for merely stating the word of God, without embellishment or bias; a position supported by the parliament’s new religious discrimination laws.

They point out that Folau’s personal brand and earning capacity have been significantly affected due to his former employer’s treatment, and that he should be compensated accordingly.

Authors

Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist and owner of 'Woman with Words'. She has a strong interest in social justice, and is a member of the Sydney Criminal Lawyers® content team.

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with over 20 years of experience as a criminal defence lawyer. He is the Principal of Sydney Criminal Lawyers®.

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