No winners in Israel Folau's Code of Conduct hearing

Sam BruceMay 2, 2019, 06:46 AM
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Australian rugby is no stranger to controversy, yet it has never seen anything quite like this.

Just when the game in Australia looked like it might be starting to recover, with improved Super Rugby results, promising television ratings and hopes that the national team, the Wallabies, could be something more than Rugby World Cup also-rans, Israel Folau invoked a firestorm that has engulfed it.

Folau's decision to reignite his anti-gay social media posting -- and also extend the attack to "drunks, adulterers and fornicators," among others -- and Rugby Australia's handling of its superstar client have thrust Australian rugby not just into the sporting spotlight, but Australia's mainstream news cycle.

As a functioning democracy, Australians have leaped at the chance either to condemn or support Folau in almost equal measure. From the prime minister to the "ordinary" Australian walking the street, the Folau debate has split the nation as it prepares to cast a formal vote on whether to re-elect said prime minister or opt for a change in leadership.

Folau's future, however, will be decided by just three people.

Saturday's Code of Conduct hearing at Rugby Australia [RA] headquarters will be chaired by John West QC, while RA's Kate Eastman SC and Rugby Union Players' Association representative John Boultbee, AM, complete the panel.

The case to sack Folau

After the 30-year-old refused to speak with Rugby Australia for the first 24 hours following his dual social media posts, RA chief executive Raelene Castle and NSW Rugby Union boss Andrew Hore issued a joint news release saying they intended to "terminate his contract" unless he could provide "compelling mitigating factors."

Having met Folau and his representatives a few days later, a breach of contract notice was issued; Folau could either accept his fate and suffer the consequences -- immediate termination -- or opt for a Code of Conduct hearing.

Here we are at that Code of Conduct hearing requested by Folau.

RA will make the case that Folau had already been warned about his use of social media after his first round of posts in April/May 2018. The Wallabies fullback met Castle, Hore and Wallabies coach Michael Cheika, with all three making it clear what the potential outcome would be should he make similar insensitive posts once again.

In writing for Player's Voice, Folau said if the situation had "become untenable -- that I was hurting Rugby Australia, its sponsors and the Australian rugby community to such a degree that things couldn't be worked through -- I would walk away from my contract, immediately."

That has proved not to be the case.

Castle, meanwhile, spoke of how she feared the issue would become a "test case" for freedom of speech. Twelve months on, those fears have been realised.

Whether RA affected the due process by signalling its intention to "terminate" Folau's contract will be something only the panel -- and then potentially the courts -- can decide, but the governing body's position has to be strong given they had discussed the ramifications with him previously.

For RA, this is all about protecting the game's image: that rugby is indeed a game for everyone.

From a Wallabies perspective, Cheika stated he couldn't select Folau. Cheika has said that he wants his Wallabies to represent the whole of Australia, and that includes those whom Folau targeted in his infamous Instagram post.

Then there is a player like David Pocock, who takes the polar opposite position to Folau when it comes to homosexuality. Pocock and his wife, Emma, refused to get married until Australia changed the law on same-sex marriage, which eventually happened after the 2018 plebiscite.

Pocock revealed he told Folau he "strongly disagreed" with the fullback's first round of posts but insisted the two could still play and perform together as part of a Wallabies squad.

Twelve months on, the big question is: Does that remain the situation?

Beyond Pocock, are other Wallabies fed up with it all? How would they feel if, before a World Cup quarterfinal, Folau launched into another spate of social media posts, setting another media frenzy in motion before a knockout contest on the game's greatest stage?

Waratahs and Wallabies captain Michael Hooper said it would be "difficult" taking the field alongside Folau, but added "you take your teammates, warts and all".

With the World Cup campaign already underway -- the Wallabies have already held two mini-camps -- at what point do the players no longer take that position?

The case to keep Folau

Rugby Australia hasn't shifted from its position ahead of Saturday's Code of Conduct hearing, having signalled its intention to sack Folau just 24 hours after his most recent round of social media posts.

ATTENTION, RUGBY FANS!

Five years ago, Folau's Wallabies teammate Kurtley Beale found himself in a similar predicament, albeit as the result of a post to a WhatsApp messenger group rather than Twitter or Instagram.

His career on the line, Beale avoided the sack despite crude comments about then-Wallabies team manager Di Patston. According to The Australian's chief rugby writer, Wayne Smith, John Boultbee, who is part of Folau's Code of Conduct hearing, was the driving force in Beale avoiding the sack.

One possible course of action for Boultbee, acting as RUPA's representative on the panel, is to have Folau's punishment downgraded in a similar fashion.

While that would be met with disgust in some quarters, it would appease many others who see the situation as an assault of freedom of speech, and a covert attack on Folau's Christianity, many of his Polynesian teammates included.

The Wallabies have a tight-knit group of Polynesian players, whose faith is evident after Test matches when they take a knee, alongside non-Polynesian players, and share in a moment of prayer.

Sources close to the team have indicated that many players from within that group are unhappy at the treatment of Folau, while Taniela Tupou, a relative newcomer to the Wallabies environment, didn't hold back in a Facebook post that was attached to a story about his Reds captain, Samu Kerevi, apologising for a religious Easter message.

Kerevi has since clarified his position, saying he didn't feel obliged to apologise. But he also said that, for him, God would always come first and that was the case for "many other professional rugby players," not just those Polynesian players who may be upset by Folau's predicament.

So concerned are Rugby Australia on the potential disruption to the playing group that Castle herself penned a letter to all the current Wallabies reassuring them that the organisation supports their right to personal beliefs.

While the threat of a player boycott would seemingly be at the extreme end of actions should Folau's contract be terminated, such a move would hit the Wallabies playing stocks hard and create a real problem for Cheika at a time when he needs every player to buy into his World Cup plans.

Would a significant fine, lengthy suspension and a clear edict that Folau was now on his last chance be acceptable by those for whom termination is a bridge too far?

While Beale wasn't sacked in 2014, he was hit with a $Aus45,000 ($38,500) fine. He also avoided suspension.

Folau would likely have to serve some form of suspension while a monetary figure would have to be greater than Beale's sum.

But what amount and actual suspension term would appease those for whom termination is indeed viewed as the appropriate punishment? Does such a figure and duration even exist?

The fallout

Whatever path this weekend's Code of Conduct hearing takes, one thing is abundantly clear: Australian rugby loses.

If Folau avoids the sack, and sponsors are to pull their support, then the damage to Rugby Australia's bottom line and public image could be catastrophic. It's no secret that RA has struggled to make ends meet, and will this year operate at a loss due to reduced Test match revenue.

Folau's first offence in 2018 attracted the ire of major sponsor Qantas, with sources close to the airline CEO Alan Joyce -- a leading voice in the successful marriage equality debate -- suggesting the Qantas boss was "furious" and that the company "wouldn't tolerate it again."

With their lucrative, long-term partnership up for renewal at the end of this year, RA can ill afford for the airline to fly away from the sport. Whether the relationship with Qantas could be saved by the fact RA wanted to sack Folau, but due process resulted in a different outcome, only time will tell.

The threat to the Wallabies' World Cup campaign, meanwhile, is clear and obvious. No matter which way the Code of Conduct ruling falls, part of the playing group is going to feel disenfranchised. At the extreme level, it could create two clear groups or even result in a player boycott.

If Folau's contract is indeed terminated, then a court challenge is entirely possible. Warnings around what could happen if he repeated his comments from last year weren't enough for Folau to not put his livelihood at risk once again. There are roughly $Aus 4 million reasons why he'd want to continue to fight, too.

It is an unenviable position the three Code of Conduct panellists find themselves in, as no matter which way they land, a section of the Wallabies, the game and even the Australian public are going to feel as though the wrong decision has been made.

And Australian rugby suffers as a result.