The account of exploitation of weakness outlined above speaks to what would shock the conscience of the court, cashed out in terms of certain classes of cases or categories identified by precedent. However, are there any moral reasons for thinking that courts ought to recognise language deficit as a category of unconscionable contract? After all, the Human Rights Act 1998 declares the right to free assistance of an interpreter in court settings. In other words, could there be a rational basis for courts judging that a language deficit constituted unequal bargaining power (the procedural element) and that the resulting bargain was significantly one-sided or harsh (substantive element) under circumstances worthy of shocking the conscience of the court? In this section, we are going beyond actual case law to give a normative jurisprudential analysis of what contract law could and should say in the cases we are looking at.
We shall begin by enquiring whether English professional football contracts signed by non-English-speaking players could be substantively unconscionable. It might be especially important to determine this in cases where it is difficult to discover what happened during the negotiations and, therefore, hard to determine whether there was any unequal bargaining power (procedural element). Sometimes courts might be unable to get to the bottom of just how much English language facility the player had or just how much of the contractual negotiations and the contract was translated into a language the player could understand. Here, as Alan Wertheimer has suggested, the substantive unconscionability of the bargain could be utilised as ‘a proxy for procedural unconscionability in the face of the epistemological problems’.Footnote 29
We assume that in order to make a non-arbitrary assessment of substantive unconscionability courts will need to light upon an independent criterion of fairness that does not prejudge the issue. But this may be easier said than done. Consider the terms of the contract. Suppose a non-English-speaking player signs a 1-year deal which includes an option clause allowing the club to unilaterally extend the contract a determined number of times, for a determined number of years, and with a determined (modest) increase in salary. Option clauses enable clubs to take calculated risks on unproven players, with the expectation that some players will work out but many will not. It strikes us as highly unlikely that an English court would adopt a criterion of fairness which stipulates that all option clauses are one-sided or too harsh. For one thing, section C.1. (j) (xiii) of the Rules of the Football Association Limited (the FA rules) vindicates option clauses (with certain provisos). Moreover, in England option clauses are commonplace in standard form players’ contracts, which themselves can be viewed as a product of some degree of collective bargaining between the Professional Footballers’ Association (PFA) and professional clubs.Footnote 30 To be sure, the legality of contracts of employment in professional football is sensitive to English common law,Footnote 31 but English courts would require a very powerful reason to adopt a blanket ruling against option clauses in the face of the aforementioned FA rules and de facto collective bargaining.
In reality, there are some good reasons not to treat option clauses as contractual pariahs. When clubs sign players, they do so based on predictive expectations of future performance levels—reflecting assessments of the player’s past performance and estimations of how well the player will adapt to the club’s training methods and playing style. Different players are more or less risky investments for football clubs given myriad factors relating not only to physical and mental skills, talents, traits, and dispositions, but also to personal circumstances such as age, marriage status, family background, country of origin, and level of education. This means the salary and the terms offered to a player who has tremendous potential but is also a risky prospect—suppose only 1 in 10 of players of this sort fully realise their potential—are unlikely to be the same as are offered to a player who has to some extent already realised their potential. The level of risk exposure to the club is inevitably reflected in the substance of the contract—in the salary or in the terms or both. A club might offer a 1-year contract to an unproven player on a relatively favourable salary, but in order to reflect the level of risk the club might include an option clause. Thus, although the option clause might seem one-sided or harsh taken in isolation, overall the contract might not be one-sided or harsh if one also considers the salary and the risk.Footnote 32
More importantly for our study, option clauses are not peculiar to contracts signed by players coming to English clubs from abroad and who do not speak English. As indicated by Football Agent 1, option clauses seem to be a fixture of contracts offered to younger players across the board. If the terms offered in standard form English professional football contracts are precisely that, standard, then at first glance non-English-speaking players would not have any greater or lesser cause to complain that their contracts are substantively unfair than their English-speaking counterparts.
Then again, perhaps substantive unconscionability could stem from the greater burdens and risks borne by non-English-speaking players due to circumstances contingently connected with their language deficit. Consider a player who is recruited from Latin America. In moving to an English club, he carries the burden of a change in climate, culture, and lifestyle which may not be to his liking. Due to visa restrictions, he might be unable to immediately—or ever—bring with him certain family members. Then there is the risk of a crushing sense of failure (psychic damage) in circumstances where the player leaves his home and travels half way around the world to start a new life in England only to be told after 1 year that he has not made the grade. If his visa is connected to his employment, he may then have to leave the country: a further upheaval. Thus, even if similar terms are offered to migrant, non-English-speaking players—such as option clauses—this belies extra levels of burden and risk shouldered by such players.
However, rational judgements as to the substantive unconscionability of contracts must always take into consideration the terms, the salary, and the risk on both sides. And so it is possible that the salary offers made by English clubs to migrant, non-English-speaking players make up for the extra burdens or risks those players must bear. Indeed, it could be that if courts adopt a criterion of fairness that compares what migrant, non-English-speaking players expect to gain from the contracts (against a baseline of having no contract or receiving the average salary of professional football players in their own countries) with the clubs’ expected gains (against a baseline of only signing English-speaking players), it could be that the gains are broadly equal and so the contracts are not substantively unconscionable.
Nevertheless, an alternative way of thinking about substantive unconscionability is in terms of whether the club’s salary offer was miserly by comparison with the club’s normal salary offer for such a player or by comparison with the going rate for such a player in the market—as opposed to comparing what the player and the club each gained. Once again, however, determining the club’s normal salary offer or the going rate in the market may not be straightforward. For one thing, there is the problem of establishing the right cohort of comparison. There should be no simplistic comparisons between the salaries of non-English-speaking players and English-speaking players for at least two reasons. First, due to circumstances contingently connected with a player being unable to speak English—such as the player coming from a developing country—clubs are likely to face higher administrative costs in identifying, scouting, and negotiating with non-English-speaking players. Second, English language proficiency could both directly and indirectly impact the player’s expected performance level. Consider the player’s coachability, leadership skills, contribution to team spirit, ability to settle into the wider community, marketability, and aptitude for handling media duties and work in the local community.Footnote 33 For both of these reasons, a player’s lack of English language facility will probably be one factor—even if not the key factor—in determining the going rate for the player. As a result, offering a lower salary to non-English-speaking players compared to otherwise equivalent English-speaking players might not be substantively unfair or unconscionable.
The technical challenges of making fair comparisons between players’ salaries do not end there, however. Even discounting simplistic comparisons between the salaries of English-speaking and non-English-speaking players, it could be that each individual player possesses a skill set so unique that it is impossible to compare any two players, even two non-English-speaking players. In that event, there is no such thing as what the club normally pays for a certain type of player, only what the club is actually willing to pay at a given moment in time for a particular player. Furthermore, even if it is possible to compare players of broadly similar types (skill sets), it could be that there is a very wide margin of error over the going rate in the market, meaning that it becomes difficult to ascertain if a salary offer really is excessively or disproportionately below the going rate. It could be that the going rate is so wildly fluctuating over time that even comparing today’s price for a player with a certain skill set with yesterday’s price is impossible.
Notwithstanding these technical challenges, courts might adopt the pragmatic rule that a contract is substantively unfair or unconscionable only if it grossly underpays a player by comparison with the going rate for such a type of player. But this still leaves plenty of ambiguity. Maybe a court should not be shocked if a club pays a particular non-English-speaking player slightly less than the going rate for equivalent non-English-speaking players, yet shocked if the non-English-speaking player receives significantly less. However, it may appear arbitrary the point at which a salary below the going rate becomes sufficiently below the going rate as to offend the conscience of the court. That being said, one solution would be for a higher court to establish a clear precedent according to which an English professional football contract is substantively unconscionable only when the player is paid not even half the going rate for his services. In justifying this move, the court could appeal to the Roman law injury of laesio ultra dimidium vel enormis (‘loss beyond half or greater’). In this way, it is theoretically possible, we believe, for a court to non-arbitrarily determine that a contract is substantially unfair because the salary is grossly below the going rate.
Even assuming that the foregoing problems are not insurmountable, there remains the task of identifying an independent moral criterion to determine whether the parties have met on unequal terms or with unequal bargaining power (the procedural element). Bargaining power normally means the comparative ability of each party to exert influence on the other party, such as to drive upwards or downwards the terms offered by the other party, based on the comparative cost or burden to each party of an agreement not being reached. In layman’s terms, the club might have higher bargaining power relative to the player if the club is the only club offering the player a contract and if the club has other players of similar quality it could sign.
However, it is not immediately obvious why a language deficit on the part of the player in itself would constitute an unequal bargaining position. An unequal or weak bargaining position is not the same as a weakness in the ability to comprehend the negotiation as it unfolds. After all, it is not difficult to imagine scenarios in which a player is unable to speak the language of the negotiation yet nevertheless enjoys a higher bargaining power relative to the club, such as if the player has uncommon or exceptional talent, has offers on the table from several clubs, plays a position on the pitch that the club is desperate to fill, and so forth.
However, it might be appropriate or fitting for courts, in such cases, to think about not only bargaining power in the above sense but also bargaining capacity. This is a matter of whether or not the parties to the contract have equal capacity, skill, expertise and so on, in negotiating the terms of the contract. For example, does one of the parties have significantly less bargaining capacity in terms of providing and articulating reasons, arguments and persuasive considerations as to why they should receive a better deal than is currently being offered? This could happen if, for instance, the negotiations are being done in English and the player does not speak English. He is then reliant on the agent to have bargaining capacity on his behalf. But what if the agent is not fluent in English, or is not fluent in the player’s language? These circumstances could diminish the bargaining capacity of the player and/or his agent, thus creating another form of procedural inequality besides strict unequal bargaining power. In this way, we are proposing or suggesting a particular future development of the doctrine of unconscionable contracts that speaks to the types of cases we are interested in.
Furthermore, even sticking within the framework of unequal bargaining power, in the case of non-English-speaking players this unequal bargaining power could be understood in terms of other circumstances contingently connected with their language deficit. For example, an important bargaining chip for migrant players coming into English football is interest from other European clubs. Yet this depends on the player being on the radar of a range of clubs, which in turn reflects the level of football infrastructure in the player’s home country, including the number of professional clubs, how many youngsters are playing at grass roots level, the strength of national football associations, players’ unions, and so on. If the player lives in a country where very few European clubs regularly send scouts, then the player is more likely to end up with a single offer on the table, if he is lucky. If the player wants to go professional, he has no real alternative but to accept whatever non-negotiable terms are offered.Footnote 34
However, unconscionable contracts also require that the unequal bargaining power brought about a substantively unfair or unconscionable bargain. No matter how unequal the bargaining power, it would be far more difficult to sustain the charge that a contract is unconscionable, morally and legally, in the absence of evidence that the terms of the bargain were also substantively unfair, and as a direct result of the unequal bargaining power.Footnote 35 On the other hand, it may be especially important to prove procedural unconscionability in circumstances where it is hard to judge whether a bargain was substantially unfair, such as when it is difficult to determine what the going rate for such a player actually was and there is a wide margin of error as to substantive unconscionability. Unequal bargaining power is not merely partly constitutive of unconscionability; sometimes, it also signposts, indicates, or suggests the presence of a substantively unfair or unconscionable bargain in cases where substantive unfairness is difficult to judge for some reason. Then again, that the process or circumstances of bargaining were unfair could only ever be prima facie evidence and never decisive evidence of substantive unfairness in the resulting contract.
A further aspect of the doctrine of unconscionable contracts that stands in need of normative theorisation is the idea that it is morally reprehensible to knowingly take advantage of another’s weakness. Perhaps courts are more likely to be shocked if the stronger party had knowledge, actual or constructive, of what it was doing. But we must ask: why is it wrong to knowingly take advantage of another party’s weakness in a bargaining situation? And, how might this relate to the case of English professional football contracts involving non-English-speaking players?
One thought could be that as soon as one contracting party does know or should know of the weakness of the other contracting party, then the former has a moral duty not to play on the weakness of the latter. However, it is unclear why parties have a moral duty not to play on the weakness of another party in a bargaining situation merely because they have knowledge of the weakness, actual or constructive. For example, arguably there would be nothing reprehensible in itself, other things remaining equal, about a club knowing that the player has no other offers on the table and setting its offer accordingly to get the best deal it can, just as there would be nothing reprehensible in itself about a player knowing that the club is in desperate need of a player to play the left midfield position and in the light of this refusing to accept a low offer from the club. Part of the purpose of bargaining is that it brings together two sides who each want the best possible deal for themselves, producing a result where both sides gain. To require those involved in negotiations to give up the posture of self-interest and take up instead an altruistic attitude seems overly demanding.
Perhaps, then, the moral reprehensibility has something to do with how, or the manner in which, parties go about playing on the weakness of the other side. For example, if the relevant weakness is the inability of the offeree to read the contract, then playing on the weakness would appear to involve a form of deception. To hide or conceal terms in the written contract by omitting to declare them to the other party reeks of dishonesty or bargaining in bad faith, especially if there is no morally relevant difference between acts and omissions when it comes to the vice of dishonesty.Footnote 36 Arguable even a substantively fair contract could be nonetheless procedurally unconscionable if it was procured in a morally reprehensible way—such as if the club does not make plain to the player in his first language the fact that an option clause is unilateral to the club only, especially if the club knows (or should make an effort to know) that the player is signing the contract under the mistaken assumption that he will be able to opt out at the end of the contractual period.
Non-English-speaking players might be taken advantage of in the aforementioned ways (morally reprehensible procedural unconscionability) precisely because the context pits especially poorly informed offerees against highly knowledgeable offerors.Footnote 37 In the words of Football Agent 3: ‘[If] say you’ve got an African player moving from a French club to an English club you’ve got three potential languages, how easy would it be to pull the wool over the eyes of one player?’.Footnote 38
On the other side, if the club does not invest in an interpreter and allows the player’s agent to do the translation and interpreting during the negotiations and contract signing, this may put the club at a disadvantage in that they do not have access to how and what information is conveyed to the player, and may not receive accurate and timely information about what the player is thinking and saying. Whether this disadvantage is morally troubling, however, depends on whether one also finds that the club has been responsible for putting itself into this disadvantageous position, despite having the wherewithal to fund independent translators. The same might not be true of players if they are unable to fund these services. We shall return to these issues of responsibility and capacity in Sect. 5.
Note, we are not suggesting that concealment of facts in bargaining situations is always and necessarily morally reprehensible. It may be that a customised ethics of bargaining would permit ‘not letting on’ to the other party just how desperately one needs what it is they are offering (i.e. bluffing).Footnote 39 Nevertheless, it is another thing to conceal features of the bargain, to attempt to hide terms that one believes the other party might reject if they knew about them. This could be morally reprehensible because it fails to live up to one of the central virtues of bargaining, namely honesty, where lack of honesty puts at risk the continued existence of the valuable social practice of bargaining and the mutual gains that flow from this practice. Therefore, to say that the offerer has a moral duty not to play on the weakness of the offeree could be simply to say that the offerer should refrain from acting deceptively by attempting to hide terms in the contract without declaring them.
However, what about cases where the club did not have knowledge, actual or constructive, of the true extent of the player’s lack of English facility? Could there be a credible moral justification for a court deeming the contract unconscionable even in such cases? We believe so. Another way of justifying, both morally and legally, the claim that English professional football contracts signed by players who lack even basic English proficiency can be unconscionable contracts is by arguing that such contracts could fail to respect and realise the autonomy of the players. This strategy invokes the value of autonomy as a basis for both the principle that contracts should normally be respected and the limiting principle that when certain vitiating factors are present contracts should not be respected. The particular form of autonomy at stake here is the capacity to make bargains with others and to create legal obligations based on the formalisation of those bargains.Footnote 40 And so we maintain that a contract respects and promotes autonomy in the relevant sense only if the parties have a reasonable level of comprehension about what it is they are bargaining for. The extreme cases would be non est factum. But perhaps at the less extreme end of this spectrum of autonomy-undermining contracts would be contracts signed by people with significant language deficits. The thought would be that even this lesser degree of diminished autonomy can justify the use of the label ‘unconscionable’ (morally regrettable) even in circumstances where the clubs lacked knowledge, actual or constructive, of the language deficit.
Along these lines, we reason that when both the negotiations and the contract are in English—as is usually the case in the UK but interestingly not in other European countries where contracts tend to be provided in translationFootnote 41—this increases the risk that a non-English-speaking player will not have a reasonable level of comprehension about what is being bargained about, and therefore decreases the chances that he will get the legal obligations that he actually wills. This is more than the minimal expectation that the player should have a basic comprehension that he is negotiating about and signing a contract to play professional football for an English club. It is the fair expectation that the player should have an opportunity of achieving a reasonable level of comprehension concerning a sizeable proportion of the negotiations and the contract, or at the very least key parts thereof.
To illustrate, suppose a contract contains an option clause allowing the club to unilaterally extend the contract a determined number of times for similar remuneration, or else contains a provision stipulating that whilst most of the remuneration package will take the form of a monthly wage, a significant proportion will be payments for image rights, and paid to a separate image rights company. If a non-English-speaking player cannot read the contract in English, nor comprehend much of the explanations about the contract offered in English, to know that these clauses and provisions are present, he may end up creating legal obligations other that what he willed. Although the player may have willed the creation of legal obligations around being a professional footballer for an English club for a period of time, he may not have willed the creation of the club’s unilateral right to renew the contract and may not have willed the creation of an elaborate tax evasion scheme.Footnote 42
Of course, both clubs and players’ representatives will often assert or argue that non-English-speaking players do understand what is going on, and have comprehension of key parts of the contract being signed. But we believe that, both morally and legally, these assertions cannot be taken at face value, but must be scrutinised and, where necessary, challenged. At the very least there should be evidence that adequate language support has been provided to the player.
Of course, at this stage it might be objected that very often even English-speaking players do not pay much attention to contractual negotiations and are only dimly aware of the substance of the contracts they sign having not bothered to read them in full or at all.Footnote 43 Does this mean that all football contracts are unconscionable? However, we would respond to this objection by insisting that at least English-speaking players have the opportunity to pay attention to the negotiations and to read the contract they are signing. If they fail to take the opportunity, then they lack actual comprehension, but they do not lack the opportunity for comprehension. In some circumstances, non-English-speaking players may lack both, and this poses a threat to their autonomy which is both different in kind and degree to the challenges faced by English-speaking players in dealing with contracts.
We also note that sometimes the aforementioned lack of opportunity could be partly down to limited English language facility and partly due to the actions of the club. Suppose a player has good enough English to be able to understand the negotiations and even to read the crucial parts of the contract given sufficient time, but the club is imposing severe time constraints on the negotiations and on the reading of the contract—requiring the deal to be done and the contract to be signed in a matter of days, hours, or even minutes ahead of the closing of the transfer window.Footnote 44 This lack of opportunity also fails to respect and promote the autonomy of the player. It could also render the contract procedurally unconscionable irrespective of why the relevant time constraints are being imposed—the club might not be imposing the time constraints artificially to take advantage of the weakness of the player, but could itself be reacting to the departure of another player and the need to sign a replacement before the close of the transfer window.