This is the fourth article in our Employment Law in Sport series to be published over the course of 2019.
Rugby Australia (RA) has terminated the employment contract of Australian and New South Wales Waratahs (Waratahs) rugby player Israel Folau following a disciplinary hearing. Folau was deemed to have committed a high-level breach of RA’s Professional Players’ Code of Conduct (Code) following a controversial post on his Instagram page on 10 April 2019 in which he made homophobic and other offensive comments. It has been reported that Folau’s motivation for the post was based on his religious beliefs.
On 11 April 2019 RA released a statement outlining that Folau had been suspended and that RA, in the absence of compelling mitigating factors, intended to terminate his contract of employment with immediate effect. Folau was previously sanctioned by RA for a similar post.
Code of Conduct
On 15 April, Folau was served with a breach notice by RA after its internal integrity unit deemed the post to be a “high-level” breach of the Code. RA outlined that he had ignored formal and repeated instruction not to make social media posts that “condemns, vilifies or discriminates against people on the basis of their sexuality”. Section 1.3 of the Code obliges all players to treat everyone equally, fairly and with dignity regardless of gender or gender identity, sexual orientation, ethnicity, cultural or religious background, age or disability.
Folau chose to have the matter referred to a Code hearing, which was fixed before a three-person independent adjudicatory panel. The burden of proof rested on RA to show, on the balance of probabilities, that a breach of the Code had occurred.
After a hearing lasting a number of days the independent adjudicatory panel found that Folau’s actions were deemed to be a high-level breach of the code, the minimum threshold required to warrant termination of his contract. Having taken written submissions from Folau’s legal team and RA on the appropriate sanction, the independent adjudicatory panel terminated Folau’s employment with RA on 17 May. He will no longer play for the Australian national team or for his club, the Waratahs. Folau has decided not to appeal the decision.
Procedural Fairness and Similar Application in Ireland
It is notable that RA, after initially signalling that it would terminate Folau’s contract immediately, ultimately decided to serve a breach notice leading to a hearing. Principles of natural justice and fairness require that before an employee’s contract is terminated for breach of contract, that he or she is provided with a copy of the allegation against him or her, provided with an opportunity to respond, and given a right to a fair and impartial determination of the issues concerned, taking into account any representations made by the employee or any other relevant evidence.
This is true for Irish athlete-employees too. The law is clear that these principles must be followed and implemented in a proper disciplinary procedure to make sure that a dismissal is fair. Otherwise, the employee may have a good case for unfair dismissal under the Unfair Dismissals Act 1977 – 2015.
Folau would have had a strong case to appeal and overturn his employment termination had RA continued with its initial approach to terminate his contract without affording him the right to a hearing.
Conclusion and Tips for Sporting Employers
Folau’s decision not to appeal his dismissal will make it difficult for him to bring a successful claim to a court that he was not afforded procedural fairness. Instead, he may claim that his dismissal amounted to discrimination on the grounds of religious beliefs and attempt to claim against his employer on that basis.
Irish sporting employers should ensure that any relevant codes of conduct are specifically referred to in athletes’ employment contracts, with the possible sanctions for breach of those codes clearly set out together with a clear disciplinary procedure.
Issues frequently arise where athletes make social media comments that their employees might perceive to be contrary to its codes. If employers do become aware of potential issues, similar to this case, they should carefully plan their intended response before acting and make sure that their response follows the disciplinary procedure and gives the athlete every opportunity to be afforded fair procedures.