Rugby union - is the practice and expression of religious beliefs compatible with professional playing obligations?

Published 16 August 2019 By: Jonathan Collins

Rugby Players

The decision by Israel Folau to contest the termination of his employment contract by Rugby Australia and the New South Wales Rugby Union has brought into focus the potential conflict between a professional sportsperson’s right to express and practice their religious beliefs, and the simultaneous obligations they owe to their employer (whether express or implied) to conduct themselves in a manner that does not bring their sport or team into disrepute.

The purpose of this article is to examine instances in rugby union where the religious beliefs of players (both Christian and Muslim) conflicted with their playing obligations and ask whether there is an inherent conflict, or whether the two can co-exist.

Observance of the Christian Sabbath (Sir Michael Jones and Euan Murray)

Sir Michael Jones began his international career with Western Samoa (as Samoa was known at the time) in 1986 before (owing to eligibility rules at the time) switching his international allegiance to the New Zealand All Blacks in 1987, for whom he played until 1998.

Mr. Jones’ international rugby career traversed both the amateur and professional eras of rugby union. During his career, he was famous to rugby fans worldwide (apart from his obvious playing ability) for his refusal to play rugby on Sundays, in observance of the Christian Sabbath.

Mr. Jones’ religious beliefs resulted in him missing three matches during the 1987 and 1991 Rugby World Cups (when fixtures were played on Sundays), before informing his decision to excuse himself entirely from the 1995 Rugby World Cup in South Africa, as a quarter-final and semi-final were scheduled to fall on consecutive Sundays.

Nevertheless, Mr. Jones’ wish to honour his beliefs was accommodated as far as possible by the All Blacks management group for the duration of his international career and did not deleteriously impact upon his opportunities for selection.

It is worth noting though that rugby union at the time was (officially at least) an amateur sport. Given that Mr. Jones was not an employee of the New Zealand Rugby (NZR, then known as New Zealand Rugby Football Union), NZR could not invoke any contractual obligation or apply any penalty provided for under contract to pressurise Mr. Jones to play a match on a Sunday contrary to his religious beliefs.

Therefore, the accommodation provided to Mr. Jones may arguably be viewed as concession to a player which could only have been possible in the amateur era of rugby union.

However, it is worth noting that after rugby union became professional in 1995 Mr. Jones was not compelled to play on Sundays by NZR, despite being in an employment relationship with NZR from 1995 onwards.

When asked if he had played exclusively in the professional era whether he may have come under pressure to break the Sabbath, Mr. Jones stated that:

I think so because, back then [in the amateur era], it wasn’t your job. There was a lot more understanding. When you sign a contract, it is black and white and you are, in some ways, signing your life away. There was scope then to allow me to not play on Sundays and still make it work.1

With the greatest of respect to Mr. Jones, the career of Scotland’s Euan Murray acts as a counterpoint to Mr. Jones’ view that the observance of the tenets of one’s faith would cause tension between a player and his employers.

Further, it shows commendable understanding by Scottish Rugby Union (SRU) (and Mr. Murray’s various club teams in Scotland, England and France) of a player’s religious beliefs in the professional era.

Like Mr. Jones, from 2009 onwards Mr. Murray refused to play matches on Sundays, on indeed partake in any non-religious activity on the Sabbath, again informed by his Christian beliefs.

As most rugby fans and players will be aware, as a tighthead prop Mr. Murray’s position is one of the most important on the rugby pitch and indeed at the time, Mr. Murray was arguably one of the few world-class players Scotland had available at the time (with apologies to Scottish readers).

Despite the inconvenience of having a player of Mr. Murray’s calibre unavailable for certain matches, the SRU were agreeable to excusing Mr. Murray from Sunday matches, and indeed Mr. Murray’s club teams throughout his career also accommodated his religious beliefs.

The Scottish national team coach at the time, Andy Robinson, fully supported Mr. Murray’s stance:

"I spoke to Euan back in the summer and he informed me as to how his reading of the Bible had persuaded him that this was the right course to take. He's a top-calibre player and obviously important to us, but we must accept that people are different.2

Respecting Islam’s prohibition on usury (Sonny Bill Williams)

In April 2017, Sonny Bill Williams became the subject of national discussion in New Zealand when he covered the logos of BNZ (a New Zealand bank) on the jersey of his provincial team, the Blues.

As a devout Muslim, Mr. Williams explained that it was contrary to his religious beliefs to wear the BNZ logo, given that its’ money lending activities entail the charging of interest which is forbidden under Islamic law.

While this drew some criticism from prominent New Zealanders, including the former Prime Minister Bill English, Mr. Williams was supported in his stance by NZR, who said that it was “matter of faith” for Mr. Williams3.

Explaining his stance, Mr. Williams said:

I want to be clear that this is nothing personal against the BNZ or Investec. My objection to wearing clothing that markets banks, alcohol and gambling companies is central to my religious beliefs, and it is important to me to have been granted this exemption.

As I learn more, and develop a deeper understanding of my faith, I am no longer comfortable doing things I used to do.

So while a logo on a jersey might seem like a small thing to some people, it is important to me that I do the right thing with regards to my faith and hope that people respect that.4

Ultimately, Mr. Williams was given dispensation to wear a bespoke jersey excluding the logo of BNZ and that of Investec, the international investment and asset management company.

Further, following dialogue between Mr. Williams, NZR and BNZ, a creative compromise was arrived at where BNZ’s logo was replaced on Mr. Williams’ jersey by that of Plunket, a children’s charity and also a partner of BNZ.

Publicly expressing fundamentalist Christian beliefs (Israel Folau)

These past episodes are, in the author’s opinion, worth keeping in mind in the context of Mr. Folau’s recent dismissal by Rugby Australia (RA) and the New South Wales Rugby Union (NSWRU).

The termination of Mr. Folau’s employment contract ultimately ensued from social media postings by Mr. Folau on 10 April 20195. These postings expressed his fundamentalist Christian beliefs that vilified homosexuals (among others who Mr. Folau believes are not living in alignment with Christian values), which were in tone and content more redolent of a 19th century revivalist preacher than a 21st century professional rugby union player.

Following a meeting with Mr. Folau on 13 April 2019, RA stated on 15 April 2019 that it would proceed to terminate Mr. Folau’s contract, with the action being warranted according to RA due to a high-level breach of RA’s Code of Conduct (the Code), adding that6 if the sanction was not accepted by Mr. Folau within 48 hours, the matter would be referred to a hearing under the Code.

On 17 April 2019, Mr. Folau informed RA and NSWRU of his intention to contest the breach notice and requested referral of the matter to a hearing before a Code of Conduct Committee (as defined in the Code, the Committee). On 17 May 2019, the Committee endorsed RA’s decision to terminate Mr. Folau’s contract employment on the basis of a high-level breach of the Code7.

It was reported8 on 6 June 2019 that Mr. Folau’s lawyers had filed applications with Australia’s Fair Work Commission against RA and NSWRU for breach of contract, averring that Mr. Folau’s employment was terminated on the grounds of his religious beliefs, in contravention of Section 772(f) of Australia’s (federal) Fair Work Act (the Act).

RA and Mr. Folau failed to reach a settlement following a meeting between the two parties (required as a first step under the Act). Accordingly, Mr. Folau began legal proceedings9 against RA on 1 August 2019 claiming unfair dismissal based on his religious beliefs. Currently, a trial date of 4 February 2020 is set for the hearing of the case, unless RA and Mr. Folau engage in successful mediation in the meantime, a course recommended10 by chief judge Will Alstergren of the federal circuit court of Melbourne.

One particular aspect of conjecture that has emerged from debates surrounding the matter is whether players of a similar background to Mr. Folau (that is, of Pacific Island heritage and who hold deep Christian convictions), may continue to be employed by RA (or indeed any other rugby body worldwide).

In particular, if the employing rugby body takes a similarly dim view of religious beliefs akin to those espoused by Mr. Folau. Taniela Tupou, an Australian national teammate of Mr. Folau’s, remarked11 that players like him, of a Pacific Islands background, should just as well be fired by their employers for holding the same Christian beliefs as Mr. Folau.

Certainly, Mr. Folau received significant support12 from rugby union players of Pacific Island heritage, at least in the modern form of “likes” for his social media posts, including fellow Australian team members. Billy Vunipola, a rugby union player with Saracens R.F.C. (Saracens) and the England national team, courted controversy in Britain and Ireland by doing this and in addition, posting a message on social media explaining in detail why he held the same position as Mr. Folau, based on his religious convictions. Saracens and the Rugby Football Union (RFU) both formally warned Mr. Vunipola, in the case of the latter for contravening RFU Rule 5.12 “for conduct prejudicial to the interests of the union or the game".13

While Mr. Folau may have received much support on social media from his colleagues and peers, at the time of writing no fellow former national team-mate has felt their support extends to recusing themselves from selection for the Australian national team.

Is there an inherent conflict between the practice and public expression of religious beliefs and professional playing obligations?

As the cases of Mr. Jones, Mr. Murray and Mr. Williams illustrate the conflict between the expression and practice of a player’s religious beliefs and his obligations to his club or national union is a matter that NZR and SRU have considered previously.

Where a player takes a stance on religious grounds which conflicts with his playing and contractual obligations, as in the case of Mr. Folau, a problem obviously arises from the tension between:

  1. the rights of the player to practice and express his religious beliefs; and

  2. the rights of the rugby body to expect (i) that the player respects his obligations under the contract of employment, and (ii) that the interests of the rugby body (in a playing and public relations sense) protected by the contract of employment are not unduly prejudiced.

Despite this, the cases of Mr. Jones, Mr. Murray and Mr. Williams illustrate that rugby union players are not necessarily constrained from practicing and expressing their religious views in a manner that honours their personal convictions, while respecting the terms of the contracts they have with their clubs and national unions.

Further, rugby union has proven itself, as a sport, to be more than welcoming of those of deep religious faith of all denominations. Indeed, rugby union has been especially tolerant of allowing players to express their religious beliefs, and overt expressions of faith are quite commonplace in rugby union. In the author’s view, it seems unlikely that football, for example, would permit religious messages to be displayed on team jerseys, in the way that Fiji’s World Cup Sevens winning team of 1997 had the Bible citation "Philippians 4:1314" marked on their jerseys.

Furthermore, it is quite common for national teams and provincial teams (notably of Samoa, Tonga, Fiji and South Africa) to join in communal prayer immediately following matches. Indeed, several players of yesteryear and today, such as Ireland’s Andrew Trimble and Jacob Stockdale, England’s Jason Robinson and South Africa’s Pierre Spies (among others), have been publicly vocal in expressing their Christian beliefs, without sanction or reprimand from their respective employers.

Thus, in contrast to the views of Mr. Tupou, the holding of fundamentalist Christian beliefs is not (nor ever should be) a ground for dismissal as a professional rugby union player. At the risk of stating the obvious, it is important to iterate that Mr. Folau’s holding of fundamentalist Christian religious beliefs, in and of themselves, did not cause him to come into conflict with RA (at least from the period after his similar previous remarks in April 2018, to his postings on 10 April 2019).

Indeed, as pointed out by Professor Jack Anderson in an excellent summary15 of the potential legal arguments prior to the hearing before the Committee, the vast majority of Mr. Folau’s social media postings during this time were overtly religious in content and tone, none of which attracted censure from RA or NSWRU.

Ultimately, it is the view of his author that there is not necessarily an inherent conflict between the public expression and practice of one’s religion as a professional rugby union player, and the contractual obligations owed by a player to his employer.

Nevertheless, where the expression of such religious faith vilifies a group or groups in society which rugby union as a sport also seeks to provide for, the case of Mr. Folau illustrates that rugby union in Australia will consider this a ground for dismissal, at least from the aspect of internal sporting governance. However, from a wider Australian employment law aspect, it remains to be seen whether such a dismissal may be considered unfair under the terms of the Act.

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Jonathan Collins

Jonathan Collins

Senior Associate, PwC Legal

Jonathan is an Irish solicitor and Senior Associate at PwC Legal Luxembourg. Jonathan has represented Munster at Youth level, and is mainly interested in rugby union and football.

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