Israel Folau is awaiting his fate.
Israel Folau is awaiting his fate.

Big problem with damning Folau claim

AFL CEO Gillon McLachlan has defended the lack of a specific social media clause in Israel Folau's contract as the rugby star waits to learn his fate after being found guilty of a "high level" breach during a code of conduct hearing this week.

After posting on Instagram last month that "hell awaits" gays, Folau may have his four-year, $4 million Rugby Australia (RA) contract torn up. However, there's also the chance he'll escape the sack and instead be hit with a fine and/or suspension.

Rugby Australia revealed its intention to sack Folau for his latest homophobic quote, which came after a similar post on social media last year sparked controversy. However, since signing Folau to a lucrative $4 million deal, it has been revealed no specific clauses were inserted into his contract about his activity on social media.

As it fights for the right to sack Folau, some have criticised RA for failing to include such a clause. However, McLachlan says that's a grey area that - had RA gone down that line - may have caused more problems.

Speaking on ABC Radio in Melbourne, McLachlan declined to weigh in on the specifics of Folau's case out of respect for rugby and the decision that still needs to be made about his future. However, he did speak broadly about the perils that come with inserting clauses into contracts about what players are permitted to say on social media.

McLachlan said the AFL has looked at that possibility in the past but believes broader problems arise when trying to hone in on one very specific issue - such as that which is affecting Folau and RA.

What to do now with Israel Folau?
What to do now with Israel Folau?

"This incident, as an example, if you were very prescriptive in the agreement, then the contractual aspect could be solved easier," McLachlan said.

"But when you do that, often you have unintended consequences.

"When you're trying to cater for an area, the more specific you get, it solves some issues, but can create others.

"When you go down a path, there will always be stuff that sits outside it and is excluded because you were specific in an agreement, and you'll have the same problems.

"Having a catch-all provision and a broader agreement generally works better to deal with the wide variety of issues you're going to deal with - here we're talking about what players can and can't say on social media as an example within that.

"Then you have to be really clear about where culturally the code stands."

McLachlan said it was natural for people to question why Folau's contract didn't have a specific social media clause in it - especially given he was in a similar situation last year - but stood by his belief such a move could lead to more headaches.

"The instinct is to say, 'There should have been a specific agreement'. I think our, and my, history on that is that you go too tight on stuff, there'll be stuff that sits outside and you'll have other, broader problems down the track," McLachlan said.

"We've looked at that (in the AFL) and should things be tighter.

"The challenges of being more prescriptive are greater than having a broad, catch-all series of provisions."

Rugby Australia CEO Raelene Castle is in the hot seat.
Rugby Australia CEO Raelene Castle is in the hot seat.

RA CEO Raelene Castle has worn criticism for the nature of Folau's contract after being in charge of the code when his first controversy blew up in 2018.

While there was nothing concrete about his social media activity in his newest multimillion-dollar deal, she and Wallabies coach Michael Cheika said Folau had been told in no uncertain terms last year he was not to post inflammatory material about gay people online, though Folau reportedly disputes that.

On Wednesday, Sydney sports radio host Terry Kennedy said Castle's management of Folau's contract was part of the reason for the mess rugby finds itself in.

"The fact of the matter is it doesn't paint Raelene Castle in a wonderful light either, does it?" Kennedy said on Sky Sports' Big Sports Breakfast.

"After the schmozzle that was left at the Bulldogs (where Castle was previously CEO), she's now gone to rugby union and it has hardly been a great start for her in the world of rugby union.

"The fact that he got this four-year deal and in that entire deal there were no specific clauses about social media posts.

"You can blame her."

The Daily Telegraph's rugby reporter Jamie Pandaram also said over the weekend Rugby Australia was left looking foolish over the contract situation.

"It looks very bad for them," Pandaram told Fox Sports News of the failure to include the clause in Folau's new contract.

"You're talking about a guy who showed he was a liability in the social media space last year, and then you go and sign him up for four years on a $4 million deal. You want to make sure you have everything in place. You need to dot your i's and cross your t's across everything. They didn't.

"They went back and said, 'Oh, we need you to sign this with the additional social media clauses', and Israel Folau said, 'Nah, I've already signed a contract'. That's what Israel Folau's lawyers will use."

Though the absence of a social media clause attracted criticism, Folau was found to be in breach of his contract even without it.

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