Israel Folau is taking Rugby Australia to the Federal Court, after his contract with the national rugby team was terminated in May over an Instagram post which warned that ‘hell awaits’ drunks, homosexuals, atheists and others. Launching the proceedings, Folau said that no Australian of any faith should be fired for practising their religion. Initial court filings revealed that he is seeking up to AUS$10 million in damages for unlawful religious discrimination.
The case has already been mired in controversy after Folau attempted to raise AUS$3 million to fund his litigation through a campaign on the GoFundMe website. Many questioned whether it was morally justifiable for the rugby star to ask for money from the public to pursue a multi-million dollar payday, and close to 100,000 people signed a petition calling for GoFundMe to shut down the page of a ‘homophobic bigot’. Folau’s crowdfunding page raised close to AUS$760,000 in its opening weekend, but in a stunning move GoFundMe announced that it was pulling the page and would be issuing full refunds to all donors.
GoFundMe sought to justify their decision on the basis that they do not tolerate ‘the promotion of discrimination or exclusion’, adding that ‘fostering an environment of inclusively’ was a priority for the organisation. There was an element of irony in the statement, given that Folau had brought the action because he was excluded from the Australian Rugby team for expressing his beliefs, but GoFundMe’s tightly worded terms and conditions ultimately gives them full control over which campaigns are allowed on their website.
Interestingly, GoFundMe has a clear track record of shutting down pages raising funds for individuals embroiled in litigation related to ‘intolerance’ of the LGBT community. The organisation pulled a fundraiser for a US bakery that had been fined for declining to make a cake for a same-sex ceremony, and another for a US florist involved in a similar case. Meanwhile, GoFundMe pages for individuals convicted of criminal assaults on disliked politicians have been kept up, including for the man who ‘milkshaked’ Nigel Farage and the ‘EggBoi’ who infamously slapped an egg on an Australian politician’s head.
A softly-spoken man of conviction, Israel Folau has received a very public kicking from his sponsors, teammates and many in the media since the incident, all for essentially quoting from the bible. His wife Maria – a professional Netball player – had also been chastised by her team’s principal sponsor, ANZ Bank, for her ‘views’ and supporting her husband on social media. But while Folau’s critics initially rejoiced at the news that his AUS$760,000 legal fund had been obliterated, it soon became clear that the move had backfired spectacularly, when an alternate fundraising appeal by the Australian Christian Lobby (ACL) raised over AUS$1 million for Folau within 24 hours of opening. It went on to raise over AUS$2 million, at which point they stopped taking donations. Raising this much money for anything is a staggering achievement – and it’s clear that GoFundMe’s decision only galvanised support for Folau’s cause.
Now that Folau has raised significant funds, it seems likely that his case will drag on for years. It will turn on the Australian courts’ interpretation of the precise wording of Folau’s contract, although the Prime Minister of Australia has said that his newly-formed government will introduce legislation to ensure that people in Folau’s situation aren’t sacked in future. Even if Rugby Australia ultimately do emerge triumphant in this case, it will be a shallow victory.
But for now, the Folau litigation rumbles on. Despite the outcome in the case being far from certain, the chairman of the New South Wales Rugby Union (a co-defendant in the legal action) has pleaded for the dispute to be settled out of court, saying: ‘no one is going to win here.’ He, along with many others who disagree with Folau’s views, seem to have realised that it is no longer Folau’s original Instagram post on trial here, but Rugby Australia, the sponsors who called for him to be sacked, and organisations like GoFundMe.
Laurence Wilkinson is Legal Counsel at ADF International.