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Israel Folau and the right to freedom of expression

Australian rugby player Israel Folau’s disciplinary hearing, which is set to determine whether he will lose his AUS$4m mega-contract for an Instagram post he published in April, will drag into a second day after eight hours of legal argument failed to settle the issue on Saturday. It is expected that the three-person tribunal will decide at some point next week whether Folau’s comments on social media were grievous enough to end his rugby career.

Folau has serious rugby credentials; he is the joint-third highest try scorer of all time for Australia, and has won the Australian Rugby ‘Player of the Year’ award a record three times in 2014, 2015 and 2017. He is about as gifted as it gets on the rugby field – the Cristiano Ronaldo of world rugby if you will. He even has a street named after him in the town where he played junior rugby. But pending the outcome of the tribunal, he’s been suspended from playing for his provincial team (the New South Wales Waratahs) as their season reaches its climax, and he will be out of the national team in a World Cup year if the tribunal upholds his dismissal. All because of an Instagram post.

For the benefit of those who haven’t seen the post, Folau posted a photograph that essentially summarises a bible passage, 1 Corinthians 6:9-10, stating that ‘hell awaits’ drunks, homosexuals, adulterers, liars, fornicators, thieves, atheists and idolators. He accompanied the photo with text that read: ‘Those that are living in Sin will end up in Hell unless you repent. Jesus Christ loves you and is giving you time to turn away from your sin and come to him’, which was followed by further bible verses.

The post appeared on April 10, and on April 11, Rugby Australia (the national governing body) stated their intention to terminate his contract, saying that while Folau was entitled to his religious beliefs, the way in which they had been expressed were ‘inconsistent with the values of the sport’. On April 15, Rugby Australia issued Folau with a ‘high-level breach notice’ that warranted the termination of his contract, which he could accept or refer to a Code of Conduct hearing. Folau opted for the latter, and was quoted saying:

‘First and foremost, I live for God now. His plans for me are better than whatever I can think. If that’s not to continue playing, so be it. In saying that, obviously I love playing footy and if it goes down that path I’ll definitely miss it. But my faith in Jesus Christ is what comes first.’

Some have insisted that sacking Folau is a ‘no-brainer’, arguing that it was long-overdue after Folau sparked similar controversy in 2018. Others were quick to rally to his defence, saying that while they fundamentally disagreed with his comments, they found it scandalous that he should be fired for expressing them.

Rugby Australia have been keen to reiterate that Folau ‘speaks for the game’. The upcoming tribunal decision is therefore likely to turn on whether or not the Instagram post in question breaches the specific wording of the Rugby Australia Code of Conduct, most likely the following provision in particular:

‘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.’

 Whether the incident has resulted in a breach of the code will be a matter for the tribunal, but regardless of the outcome in the case, some of the wider questions arising from the incident are troubling:

1. Why has the post been categorised principally as ‘anti-gay’?

The list of ‘sins’ outlined in the Instagram post goes far beyond homosexuality. Despite this, most articles led with headlines about an ‘anti-gay’ or ‘homophobic’ post, which led me (and I assume many others) to believe that homosexuality was the only issue mentioned. Where are all the outraged ‘fornicators’ and atheists?

The words Folau actually wrote to accompany the post don’t mention homosexuality at all, but rather call on people to turn away from sin. But given previous statements, as well as Qantas airline’s involvement (which I will return to), the whole issue has been framed as ‘Folau hates gays’. That is clearly not what he said, and if he did, there would be no question that his sacking would be justified. Which leads to my next question.

2. Is it ‘hateful’ to publicly express views on sin?

Even some Christians have expressed dismay that the Instagram post is a message of condemnation, but while I don’t think anyone particularly wants to be told they are going to hell, is it genuinely ‘hateful’ to express views on what is sinful behaviour? The contents of the bible may well be offensive to anyone who doesn’t believe in it, but are we comfortable with the ‘hate’ label being used if we disagree or are offended by its contents? In the current situation, perhaps the question is rather to what extent is it ‘tolerable’ to publicly express potentially offensive views on sin as a sportsman in the public eye.

A Sydney Morning Herald columnist has argued that the situation was like Folau turning up at work wearing a T-shirt saying that homosexuals were going to hell, and that Rugby Australia has simply asked him to put a jacket on. He wrote: ‘underneath the jacket we all know Folau is still wearing the T-shirt, and what it says, but we aren’t being subjected to it all day long.’ But can we genuinely say that we are perfectly happy with people holding controversial views, but just not expressing them? What if Folau was asked about it at a press conference? What if Folau was giving a sermon in church on the subject? This is a difficult, if not impossible, line to draw. Just ask former Lib Dem leader Tim Farron – he felt it would be far easier to deny having views on homosexuality than trying to defend holding them.

3. Are we happy for sponsors to censor athletes’ beliefs?

One of the more controversial aspects of this whole situation is the involvement of Rugby Australia’s main sponsor Qantas airlines, and its CEO Alan Joyce. Joyce is gay, and was one of the most prominent advocates of same-sex marriage during Australia’s 2017 referendum – contributing AUS$1m to the ‘yes’ campaign. While he faced criticism for using Qantas to promote same-sex marriage, he defended the right of businesses to speak up on social issues. Interestingly, Folau had stated in 2017 that he would not be voting in favour of same-sex marriage, which caused significant controversy at the time.

Qantas had threatened to pull its sponsorship from Rugby Australia in 2018 after Folau made similarly controversial posts (again on Instagram) and was quick to pile on the pressure after the most recent incident. Former Australian Rugby national coach Alan Jones was of the view that the decision to sack Folau is solely about money. Jones suggested that cash-strapped Rugby Australia had capitulated to Qantas when faced with the prospect of losing their biggest sponsor in a World Cup year.

Now the irony here is that Qantas’ CEO seems to be a great defender of people (and businesses) using their platform to speak out on social issues, but clearly not if he disagrees with them. The highly respected former Australian Rugby captain David Pocock very publicly said in 2011 that he wouldn’t marry his partner until their gay friends could marry, and the statement was praised as brave and courageous at the time. What if the CEO of Rugby Australia’s main sponsor happened to be vehemently offended by same-sex marriage, and had put pressure on Rugby Australia to sack Pocock?

4. Is it ‘hateful’ to support a person that has made a ‘hateful’ comment?

A very hostile reception awaited any rugby players who expressed solidarity with Folau, particularly if they ‘liked’ the Instagram post in question. Billy Vunipola, the star number 8 of the English National Rugby Team, posted his own thoughts on Instagram after receiving multiple calls from people telling him to ‘unlike’ the post, clarifying that he didn’t ‘hate’ anyone but rather saw Folau’s post as an encouragement to live ‘closer to how God intended’.

Vunipola’s response earned him a ‘formal warning’ from the English Rugby Football Union on the basis that his conduct was ‘prejudicial to the interests of the union or the game’. Nevertheless, a large number of Vunipola’s England team-mates publicly ‘liked’ his post and defended the England star’s right to voice his opinions.

Perhaps the important wider question arising out of this incident is whether we want our athletes to be ‘blank slates’ when it comes to their views and beliefs. Much of the commentary on the Folau incident seems to conclude that he’s perfectly entitled to his beliefs, but he can’t talk about them publicly. Do we all think that star athletes should just shut up about their views and beliefs until they retire?

It’s also clear that sponsors should not be given an unchecked right to censor or shape the views of players. A recent example of a sensible compromise on this was when New Zealand rugby star Sonny Bill Williams, who is a Muslim, was exempted from wearing the logos of banks, alcohol brands or gambling companies on his club’s kit. On announcing the move, the general manager of NZ Rugby said: ‘Sonny holds clear religious beliefs in relation to this matter and we respect those’.

As a long-suffering Arsenal fan, I remember the days of Dennis Bergkamp, one of our better players, who had a fear of flying. He was affectionately named the ‘non-flying dutchman’, but it was a real pain because we generally lost away games in Europe that weren’t easily reachable by bus. However, it’s not a stretch to imagine an athlete saying that he wasn’t going to fly – not because he was scared, but because he thought that carbon emissions were destroying the planet. How comfortable would we be for that player to be sacked because his views conflicted with the interests of an airline sponsor?

Isreal Folau could certainly have expressed his views in a more sensitive manner, but to be fired for expressing them at all would, in my view, be an absolutely travesty for freedom of expression in sport. To suggest that the removal of Folau is in the pursuit of ‘tolerance and respect’ makes a mockery of the terms, and as some of Folau’s teammates have already noted, it sends out a chilling message to all those who share his views. If Rugby Australia’s management genuinely wants the sport to be ‘inclusive for all’, it needs to start by including players that it disagrees with.

Laurence Wilkinson is Legal Counsel at ADF International.

 


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