Further revelations reported today in The Australian.
It may be that Cameron Clyne and the Emo Castle keep digging themselves into an even bigger hole each time they open their mouths.
First, Castle's own sworn testimony to the disciplinary tribunal - which is on record - is that within 24 hours of the offending post Rugby Australia had sought riding instructions from Qantas, formed the view that he had to be sacked and communicated advice from coach Cheika that he wouldn't be selected in the Wallabies. All before he was even given a show cause. A clearer case of denial of natural justice is difficult to envisage.
Now, Clyne may have scored another own goal at last Friday's press conference when he basically conceded all of RA's sponsors would walk if they didn't sack Folau. That raises 2 new potential claims against the sponsors - a possible breach of S45D of the Consumer Law relating to secondary boycotts, and a possible action in common law tort for interfering in contractual relations.
Someone needs to muzzle Castle and Clyne until the case is over. Then, both should be sacked.
==========================================================================================Rugby boss sticks the boot into his own team
Israel Folau leaves the Fair Work Commission in Sydney on Friday. Picture: AAP
Here is another own goal by Rugby Australia. On Friday, RA chairman Cameron Clyne said it had to sack Israel Folau because sponsors made it clear they would have deserted the sporting body if it did not. The statements reek of the same incompetence that speaks to RA’s handling of this sorry saga.
As far as legal strategies go, Clyne’s comments appear to have given Folau a new legal avenue. It will be up to Folau’s legal team, led by Stuart Wood QC, to determine whether Clyne has just exposed a new legal claim of inducement to breach a contract by RA’s sponsors. The claim goes like this: if RA breached its contract with Folau by sacking him, then sponsors induced that breach of contract by pressuring RA over the debacle. Inducing a breach of contract is an economic tort at common law.
And there is more. Sydney barrister Jeff Phillips SC, a senior silk who specialises in employment law, told The Australian yesterday that, having read Clyne’s comments, there is a real possibility of yet another new legal avenue for Folau’s team. In addition to a common law claim of interference with contractual relations, Phillip says there may also be a breach of Australian competition laws.
“If it be the case that sponsors, or even the government, has placed any pressure on Rugby Australia to terminate his contract, then that raises prospects of interference with contractual relations and aspects of Australian competition and consumer law, in particular section 45D dealing with secondary boycotts,” Phillips said.
“For example, if party A places pressure on party B to stop party C providing services to party D, that is a secondary boycott. This is not too dissimilar to when renegade trade unions like the CFMEU placed pressure on employers not to engage with contractors who have non-union labour.”
In this case, party A is potentially Qantas placing pressure on party B, Rugby Australia, to stop party C, Folau, from playing rugby for, say, the Waratahs.
What was Clyne thinking? Dopey doesn’t begin to describe what he said on Friday after settlement negotiations between RA and Folau broke down. Clyne said a long court battle would be “painful” but that if RA had not acted as it did, which led to the sacking of Folau, then “we’d have no sponsors at all because no sponsor has indicated they would be willing to be associated with social media posts of that sort and that includes government, because we’ve also heard from them”. RA receives funding from federal and state governments.
Those loose comments from Clyne dump Qantas, RA’s major sponsor, into this legal quagmire. Israel Folau v Rugby Australia may now involve Qantas as a new party, entitling Folau’s team to demand discovery of every piece of correspondence, and details of every discussion, between RA and its sponsors, particularly Qantas, to find evidence of pressure that induced an alleged breach of contract, or a secondary boycott. This could mean Qantas boss Alan Joyce is cross-examined in the witness box by Folau’s crack legal team.
Illustration: Eric Lobbecke
No doubt, Folau’s lawyers already have their heads in the law books about claims against sponsors. It also might explain why Folau wanted to raise $3 million to fund a legal case that is growing. Just as well then he has already raised more than $2m. The intervention by RA’s chairman, which blew the lid on pressure from sponsors, may make a potential claim against Qantas and other sponsors much more likely.
The Qantas boss can’t be happy with this potential new legal development. Qantas did what sponsors are entitled to do — their money comes with strings attached. But if there was an inducement to breach a contract, or some kind of secondary boycott, that is a different matter. If sponsors want to call these kinds of shots, they might discover legal consequences to their pressure.
Maybe the possibility of new legal claims will encourage Qantas to put a different kind of pressure on RA boss Raelene Castle: settle this please so we can draw a line and stop the brand damage to RA and Qantas. Mercifully, it will also stop us hearing about Folau’s social media posts.
In his Friday interview Clyne said his critics haven’t come up with an alternative to sacking Folau. Here is one: from the start, RA should have made it clear to all sponsors, Qantas included, that they were happy to disagree vehemently with Folau. He is a rugby player, not a spokesman for morality. RA should have told sponsors that sacking Folau would make a martyr out of the man, turning a small sporting skirmish into a legal quagmire and a national flashpoint about everything from corporate virtue signalling and bullying to religious freedom.
A debacle that grows bigger by the day could have been contained. Folau should have been condemned by the court of public opinion, not sacked. His social media posts would have had a use-by date of a doughnut and RA could get on with rugby. Civil society could have been empowered: instead RA neutered us.
Cool heads and careful thinking could have saved RA from this self-inflicted brand damage, not to mention money it will now spend on expensive litigation. RA is not flush with funds. Now we know it is also deficient when it comes to strategic thinking too.
Despite Clyne’s lame attempt to look like the meat in the sandwich, caught between the convictions of Folau and Qantas, RA has proven to be a dunderhead. The possibility of this new legal bonanza for Folau is another example of how RA bosses have stuffed up this saga and caught the attention of the country in the process.
Further revelations reported today in The Australian.It may be...
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