Mediation between Rugby Australia and Folau to stretch into a second day after 12-hour marathon

by Emma Greenwood

Rugby Australia and Israel Folau will return for a second day of court-ordered mediation after a marathon 12-hour session in Melbourne could not yield a result.

The parties are engaging in the mediation in the Federal Circuit Court in Melbourne where Folau is suing Rugby Australia over the termination of his playing contract in May.

Along with their respective legal teams, Rugby Australia boss Raelene Castle and Folau arrived at the mediation session on Monday morning but despite pushing deep into the night, the parties were unable to come to a resolution.

The mediation was only listed for one day but a second session has now been added for Wednesday.

Rugby Australia issued a short statement on Monday night, saying: "Court-ordered mediation between Rugby Australia and Israel Folau in the Federal Circuit Court, Melbourne has been adjourned to reconvene at 11.30am AEDT on Wednesday 4 December.

"Rugby Australia will provide no further comment until the mediation process is completed."

Earlier, Castle said on arrival at the court that Rugby Australia was "confident in its legal position" but was heading into the mediation with Folau with a "genuine desire to find a settlement that is sensible and reasonable".

The 30-year-old last week upped his damages claim against Rugby Australia to $14 million - from an original $10 million -  factoring in the belief that he could have been made Wallabies captain in the future.

Castle made a brief statement heading into court today, where she thanked those in the rugby community for their support.

"We've had many messages and emails of support and it is these messages from those within our community and the wider sports community that leaves us in no doubt that we are doing what is right," Castle said.

"Israel's commentary subsequent to his termination has only reinforced this belief.

"Rugby Australia followed the process for our contracted athletes and the tribunal found that Israel had a high-level breach of his code of conduct that warranted his contract to be terminated.

"During that tribunal process, Israel admitted he had caused harm with his comments and stated that he would not curb his social media use and will post whatever he likes whenever he feels the need to share his views.

"Rugby Australia is confident in its legal position but we come here today with a genuine desire to find a settlement that is sensible and reasonable so that we can return all our focus and resources to growing the game of rugby across Australia, ensuring that all young boys and girls who play the game across Australia have great rugby experiences.

"We hope Israel comes with the same attitude."

After an independent Code of Conduct tribunal panel ruled he'd made a "high-level" contract breach for repeated anti-gay social media posts, Folau was sacked by Rugby Australia in May.

Folau claims the termination was unlawful and is seeking an apology from Rugby Australia and reinstatement to the game.

He is also seeking substantial damages, based on his claims of the lost earnings in not only the four years left on his contract, but in subsequent contracts overseas and in post-rugby life as well.

Folau’s “loss and damage” claim states he would have earned $4.2 million in base salary between 2019 and 2022, another $450,000 in Test match payments, $300,000 in guaranteed sponsorship revenue and another $300,000 from "Lost Israel Folau branded kids’ camp payments”. 

Folau also claims he could have earned up to $4.5 million “following the end of his international career with the Wallabies”, stretching out to as far as 2026, when he will be 36.

The former dual international also claims he could have reaped “career monetary benefits” of up to $50,000 a year for the next year 15-25 years, based on his playing record and "possible captainship of a trophy-winning Wallabies team” in the future, and having helped the Wallabies to "a superior performance at the 2019 Rugby World Cup by the Wallabies than what was achieved without Mr Folau."

In a video posted on his website on Sunday night, Folau, who was welcomed outside court by supporters who joined him in a prayer circle, said he "only share(s) passages from the bible as a gesture of love".

"Today's court-ordered mediation marks an important step in my case against Rugby Australia," Folau said in the video.

"I understand that not everyone shares my faith and some find it difficult to reconcile with their own beliefs.

"I want to be clear that I only share passages from the bible as a gesture of love. It is only through the bible that we can come to understand god's will."

Folau also asked that god "watches over us" in the mediation "so that both parties may realise the courage to uphold the truth".

Folau is also seeking to have the ruling of Code of Conduct panel declared void, based on one of the panel members, Kate Eastman SC, having not recused herself due to “bias” of her having once appeared for Rugby Australia, and with her record of being an advocate for gay and lesbian rights, and diversity and inclusion in the legal world.

 If mediation fails the case will go to trial in the Federal Court in Melbourne on February 4.