We’re nearly two weeks into the latest Israel Folau controversy and the commentary is still filled with distractions. So, with his closed code of conduct hearing now scheduled for May 4, let’s be clear about what he actually did.
Firstly: this is a serious issue. Much of the initial responses to Folau’s comments focused on the fact that, if he is right about who he says is going to hell, we’re all going to hell. Cue lots of tweets poking tongues in cheeks about the consequences of fornicating, drinking and lying. If Folau’s injunction had been restricted to the consequences of what people do, then yeah whatever. However, the point is frequently missed that there’s a difference between what we do and what we are. Specifically, here: the state of being gay.
Folau, in explicit terms, posted on Instagram that homosexuality (a state of being) will result in consignment to hell. If you’re LGBTIQ, that is a brutal stab of exclusion from a person of high stature and long reach. Those words hurt.
Secondly: this is not about religious freedom. Folau’s freedom, as an individual, to hold and express his belief about damnation is absolute. He can write it, preach it, stand for parliament and stick it in his maiden speech. He runs no risk of prosecution, persecution or prevention. Recently the High Court ruled that anti-abortion campaigners can say whatever they like, just not within 150m of a clinic which offers abortion services in Victoria or Tasmania; the same principle is true here. Folau will never be short of opportunities for openly sharing his faith.
The legal question here is straightforward: does Rugby Australia have the right to terminate Folau’s contract as its employee, for breach of its social media policy? It may be old-fashioned of me to say so, and this is absent from most of the hot takes, but there does remain a fundamental truth to employment relationships: employers pay employees to work for them. Employment can be intrinsic to human dignity, but it is not a human right. Employers carry no legal or moral obligation to provide employment to anyone.
Of course, employees have rights; employers are constrained by rafts of laws which protect employees from exploitation and unfairness. If Folau’s contract with Rugby Australia said nothing relevant to his private social media usage, then he could not validly be disciplined under it for his posts. He has the full protection of contract law, anti-discrimination law and plenty of other laws.
Still, the contractual bargain has a role to play. An employer acting in good faith has the right to impose its organisational values on its employees; they can make and enforce reasonable rules in relation to behaviour which promotes or degrades those values. In Folau’s case, there’s no question of ignorance or inadvertence. He did the same thing a year ago and was given a second chance with the promise that he’d lay off the anti-gay posts.
Another thing this is not about: the quasi-religious status of sport in Australia. Yes, Rugby Australia occupies the peak position in a major football code; it speaks for rugby and it influences social norms. If that makes it a religion, so be it. Either way, it has no greater or lesser a right than any other body of influence to regulate the messages it chooses to transmit.
It would pass without comment if a religious school sacked a teacher who had been publicly proclaiming that God doesn’t exist. That’s not to equate rugby with faith; rather, it shows how far employers (religious bodies and secular organisations) may go to enforce uniformity of public expression by its employees.
There are legitimate arguments to be had about what an employer should be able to control. The High Court is currently hearing a case regarding the Commonwealth’s ability to prevent public servants from criticising government policy on social media. The Jack de Belin case is exploring a different aspect of the same thing: whether the NRL can protect its public image at the cost of its players’ individual rights (in de Belin’s case, the presumption of innocence). Businesses are increasingly seeking to assert control over their employees’ public presence, prioritising commercial interests over free speech. There has to be a limit to that.
If you accept that these broader questions don’t have clear answers, Folau’s case is not so difficult. Rugby Australia is a public-facing institution; its players are, as they know and accept, its prize assets and promoted as role models. The game promulgates specific values, which include the core value of diversity and acceptance.
Folau openly flouted that core value. His action cannot be reconciled with what Rugby Australia stands for. If he were allowed to remain — if they kept paying him to wear their stripe — then the whole thing would be a joke.
Opinions widely differ as to whether Israel Folau should be allowed to express his religious beliefs without risk to his employment, or whether that should be governed only by his performances on the field. I’d say no, but only one opinion actually matters: that of Folau’s employer. Rugby Australia has said that this behaviour it cannot accept. It has every right to do so.
A religious zealot? Lucky for him he’s not a Muslim?
Spot on. I’d bet good money precious few of these freedom of speech warriors of convenience backing Folau’s right to spout this rubbish free of any consequences would take the same stance if he was Muslim.
Yes cropje, all you have to do is remember the response of the free speech warriors to Yassmin Abdel- magied’s tweet.
Non-Muslim Scott McIntyre didn’t get much help from free speech warriors either.
Had Folau claimed the Anzacs had gone to /deserved Hell, Izzy would have found himself in Purgatory too.
Quite the reverse klewso.
Had Folau been a Muslim posting that women in immodest dress were ‘cat meat’, I am sure Rugby Australia would be bending over backwards to be nice to him, citing cultural differences and implied rights of religious expression and all the other weasel words which Alan Joyce would have no problem hearing, even though he would be first on the list for ‘aversion therapy’ should Sharia law obtain here.
The reality is that loud expression of fundamentalist Christian beliefs is fair game because nobody fears a Christian these days.
Folau doesn’t face the termination of his career for stating his views. His career is over becausse he breached his contract. He signed away his right to say what he thinks about gays, drunks, atheists, fornicators et al for a great big sack of cash, more cash than most of us will see in our entire lives. And to get all that cash he simply had to turn up and play 25-30 games of rugby a year, make himself available for representational and promotional duties for his employer, and in that contract was almost certainly a clause that he would, at all times, even in private, abide by the Rugby Australia code of conduct. Plain and simple. Not an abrdgement of his freedom of speech, not a curtailiing of his rights as a Christian. He violated the terms of a legal undertaking. He chose to forego those rights in exchange for a huge steaming pile of moola. Before we get to the next part let’s all just recall the bit in his guiding text about rich men, heaven, camels, and the eyes of needles.
And why is the prohibition against such outbursts in the Rugby Australia code of conduct in the first place? To appease the CEO of their main sponsor as alleged by Jones? No. Not at all, although that’s undoubtedly a consideration. In the main it’s there because Rugby Australia, like other major sporting codes around Australia, and indeed the world, are all too aware that their sport has a problem with the way junior players who struggle with their sexuality are treated. Struggle to the point where regretably some are driven to take their own lives. The bullying that all too often leads to these tragedies can frequently take place on the sporting field, and most codes including Rugby Australia, have recognised they have a responsibility to minimise such harm and so have taken steps to ensure that these vulnerable young people are protected from such actions, fulfilling their duty of care towards them. And the most potent way to do that is to have the most senior players in the game act as role models, and to speak out against the mistreatment of young people facing such travails. If Folau couldn’t do this then he had the alternative option to just keep his mouth shut, and his Facebook account closed. Or not play rugby at all and preach for a living. Much less lucrative that though.
Michael…Thank you for that explanation of the Folau case. I would be horrified if the law just accepted such homophobia, in all the circumstances you set out.
What happens now to Geelong’s golden boy in AFL? Having ‘liked’ Falau’s comments, he quickly withdrew when the whole controversy erupted. Is that good enough?????
Yes, thanks for a clear explanation Michael. A root part of the problem and why sport needs to have these rules is the absurd notion of sport stars as role models. I’ve never in my life thought of any sport players as role models or anything vaguely along those lines. I’ve admired one or two as thinkers but really, sport and deep thought tend not to go together.
Time to knock this role model nonsense on the head. Who’ll take on the task though ?
Sports people are not always the best role models, and you may have never looked at them in this way, but plenty of people do and I don’t see that changing. That said, when I look around at kids these days I see the jerseys of a lot more American sports stars, particularly basketball.
What the ranters also need to realise is that many employers including most public servants are absolutely forbidden from making social media comments that reflect badly on the employer’s policy under their own name. The high court is about anonymous ones, which to my mind should be free within the wider laws. If Folau had posted as Tattooed Tool (possibly the truth) for example, then he would not be identified with Rugby Australia.