Folau admits apology offer; challenges validity of conduct tribal

by Iain Payten and wires

Former Wallabies star Israel Folau has admitted he offered to make an apology over his anti-gay social media posts but is challenging the validity of the tribunal who heard it.

Folau was sacked by Rugby Australia in May for posting messages on social media saying homosexuals will to hell, and linking the devil and transgender issues.. 

They were found to be a high-level breach of Rugby Australila's players' code of conduct by an independent tribunal.

Folau, 30, is pursuing legal action against Rugby Australia and NSW Rugby, claiming he was unlawfully dismissed for expressing his religious views, and his axing is a restraint of trade.

The Super Rugby record try-scorer had been on a Aus$1 million-a-year, four-year deal.

In court documents made public on Thursday, which Folau reponds to Rugby Australia's defence filings last month - the athlete's lawyers said Folau had offered a series of concessions to Rugby Australia for a "low-level" breach of the code of conduct.

These included paying a fine to Rugby Australia, serving a four-week suspension, and "submitting to mentoring sessions about how he could practice his faith publicly and how he could best articulate his religious views and beliefs on social media".

The filing said Folau had told a tribunal hearing to consider his future that at least 15 teammates and members of coaching staff had "provided him with messages of support" or urged him to return to the game, something he "had a great desire to do".

According to the document, Folau offered to make this apology: "I sincerely understand that what I have posted has been hurtful to some readers. This was never my intention, so for that reason, I wholeheartedly apologise for any pain or sense of confusion that that has caused."

Rugby Australia have argued Folau's promises to observe social media restrictions in the future could not be believed given he'd previously pledged to not post such material after an identical controversy in 2018, and that he refused to not post anti-gay messages again.

He also refused to take down the offending posts.

The three-person independent Code of Conduct tribunal agreed with Rugby Australia and paved the way for a termination by finding a high-level breach.

In the most recent filing, Folau's legal team are challenging the COC tribunal's finding, saying it is "void" because one of the members, Kate Eastman SC, should have been recused.

Folau's team sought to have Eastman removed because she had previously represented Rugby Australia in a matter, and she had "apprehended bias" against Folau because of her involvement with several organisations who advocated for the gay and transgender community.

Folau's legal team argued Eastman's status as "co-founder and member of Australian Lawyers for Human Rights (“ALHR”), an organisation that advocated for the LGBTI community" should disqualify her. 

But Eastman rejected the submission to recuse herself.

Folau's team also claimed Rugby Australia failed to exercise the necessary "discretion" available in the code of conduct in dealing with his breach.

The high-profile rugby player argued in an earlier statement of claim that his dismissal over anti-gay comments was "an unreasonable restraint of trade" because it stopped him playing the sport.

Rugby Australia responded that he was not being prevented from playing rugby overseas, and he had not sought a contract with an Australian team since being sacked by the Waratahs.

Folau is reportedly seeking A$10 million, including for lost sponsorship and marketing opportunities.

The case is due to go to mediation in December.