NVA Management Ltd v Martins

The claimant, NVA Management Ltd. (“NVA”), was described by Mr. Chris Nathaniel, the sole director of NVA, at paragraph 2 of his first witness statement made for the purposes of this action, dated 15 October 2009, as

“a bespoke management company that represents and consults for music, sporting, film and television talent.”,

but the precise nature of the business of NVA was rather obscure. It seemed in part to consist in negotiating the commercial terms of contracts for the benefit of those whom it represented for the exploitation of whatever talents those clients professed. So, for example, if a client was a football player, what NVA would seek to do was to negotiate the terms of a contract with a football club to employ the client, or to negotiate other arrangements under which sums would be paid to the client. However, an aspect of the activities of NVA was what Mr. Nathaniel called “lifestyle management”, by which I understood him to mean the provision of the sort of services often undertaken by a personal secretary – making travel arrangements, assisting with dealing with interior decorators, arranging to view properties which the client might be interested in purchasing, and so forth. However, this aspect of the activities of NVA was not a business, in the sense of services provided in expectation of a fee. Rather, they were services provided free of charge, but with the expectation of reimbursement of any expenditure incurred, as part of a desire to maintain the goodwill of a client.

The defendant, Mr. Obafemi Martins, is a professional football player. He is currently employed by a football club in Wolfsburg, Germany called VIL – WOLFSBURG – Fussball GmbH. At the time of the events relevant to this action he was employed by Newcastle United Football Club Ltd. (“Newcastle”).

Mr. Martins entered into an agreement (“the Player Contract”) in writing dated 23 August 2006 with Newcastle. Under the Player Contract Mr. Martins was to be employed by Newcastle from 23 August 2006 until 30 June 2011. His initial basic salary, for the period 1 August 2006 to 30 June 2007, was £224,856.33 per month. However, the Player Contract did provide for the making of other payments by way of bonus in certain situations.

Amongst the opportunities available to professional football players, it seems, is the prospect of making money by activities ancillary to the playing of football. One of these activities is the exploitation of what are called “image rights”. Mr. Martins entered into a written agreement (“the Image Rights Contract”) with Newcastle in relation to his image rights dated 21 January 2008. The definition of the expression “image rights” contained in that agreement was:-

“all legal and beneficial rights and goodwill that subsist in relation to the use, exploitation, reproduction of or association with or otherwise of the personal attributes of the Player including without limitation the name, nickname, initials, autograph, caricature, statements, biographies, testimonials, endorsements, photographs, video, film or sound recording, voice, image reproduction and likeness and/or computer operated or animated portrayal or any other means of endorsement or identification, personal appearance.”

In this judgment I shall use the expression “image rights” in the same sense as that defined in the agreement from which I have quoted.

The making of the Image Rights Contract was foreshadowed at paragraph 13 of Schedule 2 to the Player Contract. That provided that:-

“(If applicable) The following provisions which are additional or supplemental to those set out in Clause 4 have been agreed between the Club and the Player as referred to in clause 4.11.

The Club will enter into an agreement with “IM1” in respect of the Image Rights of the Player pursuant to which the Club will pay such sum to IM1 which after any UK income tax and employers’ or employees’ national insurance contributions which HM Revenue & Customs recovers from IM1 or from the Club in respect of the payment of such sum to IM1 by the Club will leave IM1 with a total of £450,000 per annum payable in two equal instalments, six months in arrears (“Image Contract Payment”). The Club will in addition compensate the Player for any UK income tax or national insurance contribution, which HM Revenue & Customs recovers from the Player in respect of the payment of such sum to IM1 by the Club. Accordingly, the Player is unable to grant rights set out in clauses 4.1, 4.3, 4.6 and 4.7 of the Contract dated 23^rd August 2006 and, in accordance with clause 4.11, the Player and the Club have agreed that the provisions of clauses 4.1, 4.3, 4.5, 4.6 and 4.7 shall not apply to this contract.

However, “IM1” will grant all such excluded rights to the Club pursuant to the said Agreement dated 23^rd August 2006.

The above taxation provisions represent an apportionment of risk between the parties and are without prejudice to the view of the Club that no such taxation should be payable in respect of the Image Contract Payment, which the Club regards as reasonable for the licence of the Image Rights of the Player.

Key

“IM1” means a company into which the Player will transfer the right to exploit his image and reputation in relation to football and non-footballing activities.”

The sum payable under the Image Rights Contract was that stated in paragraph 13 of Schedule 2 to the Player Agreement, £450,000 per annum, for the period between 23 August 2006 and 30 June 2011.

Another possibility open to a football player of making money is by sponsorship. In broad general terms, under a sponsorship agreement a company agrees to pay a football player an amount of money in return for the player making himself available to promote the products or services of the paying company. This may be by wearing devices of the company on his clothing, participating in promotional advertising, making personal appearances or in myriad other ways.

Mr. Martins entered into an agreement (“the First Friesland Agreement”) dated 8 October 2005 with a company incorporated in Nigeria called Friesland Foods Wamco Nigeria Plc (“Friesland”). At that time Mr. Martins played in the Nigeria national football team and was employed by an Italian football club, Internazionale Milano FC. Under the First Friesland Agreement Mr. Martins agreed to endorse and promote “Peak” brand milk for a period of two years from 8 October 2005, but terminable by three months notice at any time, and Friesland agreed to pay him a sum of US $50,000 per annum during the currency of the agreement.

After the expiry of the First Friesland Agreement Mr. Martins entered into a further agreement (“the Second Friesland Agreement”) with Friesland. The Second Friesland Agreement was dated 8 October 2007. It was to similar effect as the First Friesland Agreement. The duration of the Second Friesland Agreement was from 8 October 2007 for three years, but could be terminated by Friesland at the end of the first year, or by either party by three months notice. The sum payable to Mr. Martins remained US $50,000 per annum.

The Second Friesland Agreement was superseded by yet a further agreement, (“the Third Friesland Agreement”) dated 1 June 2008. The term of the Third Friesland Agreement was from 1 June 2008 until 31 May 2010, but terminable at any time by three months notice. The sum payable to Mr. Martins continued as US $50,000 per annum.

Another sponsorship agreement into which Mr. Martins entered was with Nike European Operations Netherlands NV (“Nike”). This agreement (“the Nike Agreement”) was effective from 1 December 2005 and continued in force until 30 November 2008. Under the Nike Agreement Mr. Martins agreed, amongst other things, to endorse the products of Nike. In return he was to be paid a basic sum of €200,000 per annum, but was entitled to bonuses in certain circumstances.

A further sponsorship agreement into which Mr. Martins entered was with Vixen Enterprises Ltd. (“Vixen”), a company incorporated in Nigeria, and was dated 31 May 2006. Under this agreement (“the Vixen Agreement”) Mr. Martins was to be paid US$100,000 per annum to endorse the products and services of Vixen and to use the name and photograph of Mr. Martins to promote those products and services. It appears that the principal business of Vixen is the provision of mobile telephone services in Nigeria. The term of the Vixen Agreement was two years from 31 May 2006.

In 2006 Mr. Martins also entered into a sponsorship agreement with Pepsi-Cola International (“Pepsi”). That agreement (“the First Pepsi Agreement”) was dated 28 November 2006. Under it Mr. Martins agreed to promote beverages sold under the names “Pepsi-Cola”, “7UP”, “Mirinda” and “Mountain Dew” for a period of two years, expiring on 28 November 2008. In return he was to be paid a sum of US $120,000. The annual rate of payment was thus US $60,000.

Mr. Martins and Pepsi entered into another agreement (“the Second Pepsi Agreement”) dated 28 November 2008, which was to the same general effect as the First Pepsi Agreement, but related to the period 28 November 2008 to 28 November 2010. The sum payable remained US $120,000, or US $60,000 per annum.

It was common ground that Mr. Nathaniel met Mr. Martins for the first time on 16 July 2007. It was also common ground that Mr. Nathaniel produced to Mr. Martins the next day, 17 July 2007, a letter (“the Letter”) addressed to Mr. Martins which was in these terms:-

“Image Rights Advice

1 This letter agreement (“Agreement”) sets out the terms on which Obafemi Martins (“you” or “your”) has appointed NVA Management Limited (“NVA”) to provide advice to you regarding the exploitation of your “Image Rights” (meaning your name, nickname, likeness, image and reputation (and all other identifying features)) and other related matters (the “Services”).

2 You hereby acknowledge that you have received the Services from NVA and accordingly, in consideration of the receipt of the Services, you shall pay to NVA the sum of £299,167 (two hundred and ninety-nine thousand one hundred and sixty seven pounds) (exclusive of VAT which shall be payable by you in addition thereto) upon signature of this Agreement.

3 You warrant and represent that you have no present agreement, contract, undertaking or other arrangement in connection with the matters set out in this Agreement with any person or organisation other than NVA.

4 We agree that the terms of this Agreement are confidential and shall not be disclosed to any third party other than to either of our professional advisers or as may be required by law or as may be agreed between us.

5 This Agreement shall be governed by and construed in accordance with English law. The parties irrevocably agree that the English courts shall have exclusive jurisdiction over any suit, action, proceedings or dispute arising out of or in connection with this Agreement, save only in respect of the enforcement of any judgment given by such English courts, which may be enforced in any jurisdiction.

Please indicate your agreement to the above terms by signing where indicated below.”

Mr. Martins did sign the document, beneath the words, “Read and agreed”. He dated his signature 18 July 2007.

£299,167 plus Value Added Tax at 17.5% amounted to £351,521.23.

The case of NVA was that Mr. Martins had paid sums totalling £185,062.50 under the alleged agreement contained in the Letter counter-signed by Mr. Martins, but that the balance of £166,458.73, inclusive of Value Added Tax, remained unpaid. That alleged balance was the principal claim of NVA against Mr. Martins.

The way in which the case of NVA in respect of the balance unpaid of the sum said to be due under the alleged agreement contained in the Letter was pleaded in the Further Amended Particulars of Claim of NVA, omitting underlining and words or figures struck out, was:-

“2.

On 17 July 2007 the parties entered into a written agreement under which it was agreed that the Claimant would act on behalf of the Defendant in relation to all discussions and negotiations with the Club [that is, Newcastle] in connection with the exploitation of the Defendant’s image rights by the club [sic].

3.

In consideration of the Claimant’s services set out above the Defendant agreed to pay to the Claimant the sum of £299,167.00 (exclusive of VAT) upon signature of the Agreement.

4.

In pursuance of this Agreement the Claimant negotiated and managed the documentation of a transaction between the Defendant and the Club in respect of the Defendant’s image rights. The Club purchased the Defendant’s image rights for a period of 5 years pursuant to which the Defendant received income.

…

7.

On 25 January 2008 the Defendant paid to the Claimant by way of Bank Transfer the sum of £135,000 in part satisfaction of monies due under the Agreement dated 17 July. On 24 April 2008 the Defendant paid to the Claimant a further £50,062.50.

8.

On 1 August 2008 the Claimant sent to the Defendant an invoice for the sum of £283,640.91 inclusive of VAT in respect of the sums due. [It was not in dispute that the sum claimed in the invoice was over-stated.] To date the Claimant has not received payment of the sums due.”

The pleaded case was, therefore, on its face, a straightforward claim for the unpaid balance of a sum agreed to be payable in advance for the service of negotiating the Image Rights Contract. It was not suggested that any other services were to be performed by NVA under the alleged agreement relied upon.

In an Amended Defence served on behalf of Mr. Martins the following contentions, omitting underlining and words struck through, were advanced in response to the principal claim of NVA:-

“4.

It is denied that the contents of the letter reflect reality, and further denied that the letter constitutes a valid contract between the parties.

5.

Contrary to what is asserted in paragraph 2, the letter did not purport to agree that the Claimant would act on behalf of the Defendant in connection with the exploitation of image rights. Rather, it asserted that certain services regarding the exploitation of the Defendant’s image had been carried out by the Claimant, for which payment had been agreed. In truth, no such services had been performed by the Claimant. It is denied that the letter makes any mention of the Club.

6.

It is denied (if it be alleged) that the letter purported to or did govern the provision of any services in the future by the Claimant.

7.

As to paragraph 3, it is admitted that the letter included a statement that the services had been received, and that sums were payable by the Defendant to the Claimant. However, as no consideration had been provided by the Claimant, such statement was of no legal effect.

8.

As to paragraph 4, it is denied that any activity carried out after the date of the Agreement could have been carried out “pursuant to it” for the reasons set out above. At such time as the Claimant sets out full details of what services were provided, and when, the Defendant will provide a full response. The Defendant will contend that if, as to which no admission is made, the Claimant played any role in re-negotiating his image rights with the Club, the additional value of such rights was less than the sum claimed, and it would be a commercial nonsense to have agreed to pay the sum claimed for such services as may prove to have been provided.”

Those pleas prompted Mr. Robert Temmink, who appeared on behalf of NVA, to seek permission at the commencement of the trial for service of an Amended Reply. The Amended Reply included, at paragraph 5, omitting underlining:-

“As to paragraph 7 of the Amended Defence, it is accepted that the written agreement dated 17 July 2007 contained a statement that services had been received. The Defendant is referred to the answers provided in the RRFI. Further, if, contrary to the Claimant’s case, the written agreement dated 17 July 2007, is found to be unenforceable, the Claimant will rely upon

a.

the oral agreement reached between the parties on the same date, namely that the Defendant would provide advice to the Defendant regarding the exploitation of his “Image Rights” (meaning the Defendant’s name, nickname, likeness, image and reputation (and all his other identifying features)) and other related matters; in particular

i.

building the Defendant’s “brand”;

ii.

investigating the possibility of negotiating an improved contract with the Defendant’s employer;

iii.

general management of the Defendant’s affairs.

b.

the Claimant’s performance of the agreement;

c.

the Defendant’s payment of sums due pursuant to the agreement;

to support the Claimant’s claim for payment of the sums set out in the Amended Particulars of Claim which remain due and owing by the Defendant, and which actions show an unequivocal outward manifestation of a common intention to enter into legal relations in respect of the services set out in sub-paragraph (a) above for the fee set out in the written agreement, namely £299,167 (plus VAT).

The Claimant provided services to the Defendant between July 2007 and July/August 2008. In consideration for such services the Defendant was under an obligation to pay to the Claimant such sums as set out in the written, alternatively, the oral agreement dated and/or concluded on or about 17 July 2007.”

Additional claims of NVA were put in this way in the Further Amended Particulars of Claim, omitting underlining and words struck out:-

“5.

Pursuant to a further oral agreement the Claimant was retained to pursue payment for the Defendant in relation to a number of sponsorship and endorsement agreements for the benefit of the Defendant. It was agreed that the Claimant would be remunerated by payment of amounts equal to 20% of the sums collected.

6.

The Claimant collected payments and is entitled to the following commissions, as follows: Pepsi £3,054, Peak Milk £10,000, Nike €10,000 (plus VAT in each instance).”

Including Value Added Tax at 17.5%, these claims totalled £15,338.45 and €1,175.

In the Amended Defence the claims for commission on sums allegedly collected for Mr. Martins by NVA were not admitted.

At the trial the claim in respect of commission on any payment in respect of Peak Milk was not pursued. The quantum of the other claims in respect of commission was admitted, subject to liability.

An alternative case to that allegedly founded on the Letter and that based on the contention that Mr. Martins had agreed to pay NVA 20 per cent of sums received under sponsorship agreements was pleaded in paragraph 10 of the Further Amended Particulars of Claim thus:-

“In the alternative the Claimant claims reasonable remuneration for the work it carried out for the Defendant on a quantum meruit basis.”

No particulars of the work allegedly carried out were provided. There was no plea as to the amount which the alleged work was said to be worth, or any plea as to how it was contended the worth of the alleged work should be assessed.

The evidence put before me indicated that the Letter was in fact drafted on behalf of NVA by the well-known solicitors Hammonds LLP (“Hammonds”). Initially in this action privilege had been claimed in relation to communications between Mr. Nathaniel, on behalf of NVA, and Hammonds. However, privilege was waived in what, as I understood it, were all of the e-mail communications between Mr. Nathaniel and Hammonds relevant to the issues in this action, and copies of the material e-mails were put in evidence.

The chain of e-mails seemed to begin with an e-mail from Mr. Tom O’Flynn of Hammonds to Mr. Nathaniel sent at 11.53 on 25 June 2007. That was about Hammonds’ need to be provided with documentary evidence of the identity and address of Mr. Martins for the purposes of Money Laundering Regulations 2003. There was an exchange of e-mails on that subject which is not material to any issue in this action.

Mr. O’Flynn then wrote an e-mail to Mr. Nathaniel sent at 18.20 on 28 June 2007:-

“Further to your phone call with Andrew, I attach a draft commercial representation agreement between NVA and Obafemi Martins. Please can you review the document and check you are happy with the terms.

I have flagged up some specific queries for you regarding the term of the agreement, the amount of commission payable etc., but as I have had limited instructions on this there may well be some additional provisions you want incorporated (or some that you want taken out). Please come back to me with any comments.”

It was common ground that the commercial representation agreement referred to in that e-mail was not the Letter, but a draft of a formal type of contract. In due course a form of commercial representation agreement dated 23 October 2007 (“the Draft Management Agreement”) was presented to Mr. Martins by NVA, but Mr. Martins did not sign it. In cross-examination Mr. Martins accepted that a predecessor of the Draft Management Agreement, which possibly was in identical terms, save as to the date, had been given to him on the occasion of his meeting with Mr. Nathaniel on 17 July 2007.

Mr. Nathaniel replied to Mr. O’Flynn’s e-mail of 28 June 2007 on the same day at 19.45. The terms of the reply are not material to any issue in this action, save the sentence:-

“The Nigerian agent wants a one page agreement that entitles me, Andrew and him to negotiate any new deal with Newcastle or any possible transfer to Arsenal.”

In cross-examination Mr. Nathaniel identified “The Nigerian agent” as Mr. Errol Olowu and “Andrew” as Mr. Andrew Osborne, a member of Hammonds. The one page agreement mentioned was not the Letter.

Mr. O’Flynn revised his draft of the commercial representation agreement and sent the amended draft to Mr. Nathaniel as an attachment to an e-mail sent at 10.15 on 3 July 2007. It is unnecessary for the purposes of this judgment to quote from the e-mail of 3 July 2007.

In an e-mail to Mr. Osborne sent at 11.57 on 10 July 2007 Mr. Nathaniel enquired,

“any news on the side letter for Obafemi Martins?”

Mr. Nathaniel told me that that was in fact a reference to what became the Letter. In point of time it seems to have been the first reference to what became the Letter in the chain of e-mails put in evidence. It did not appear that Mr. Nathaniel gave instructions in documentary form for the production of the Letter. Certainly no copy of an e-mail or letter giving such instructions was put in evidence. The reply to Mr. Nathaniel’s enquiry, sent at 18.44 on 10 July 2007 by Mr. Osborne was:-

“I have been chasing james [sic] on the obafemi letter but haven’t got hold of him yet.”

The draft of the Letter was despatched by Mr. O’Flynn as an attachment to an e-mail sent at 10.55 on 17 July 2007 to Mr. Nathaniel:-

“I attach the one page side letter agreement between NVA and Obafemi Martins which deals with the provision by NVA of advice in relation to Obafemi’s image rights. The fee payable to NVA under the agreement will be £299,167. You will need to insert Obafemi’s address into this letter.”

Mr. Nathaniel told me in cross-examination that he thought that he would have seen a draft of the Letter prior to the version sent as an attachment to that e-mail.

It is plain on the face of the Letter that it purported to record the fact that NVA had performed “the Services” as defined, that Mr. Martins acknowledged that he had received “the Services”, and that, because he had received “the Services”, he agreed to pay to NVA on signature of the Letter by him the sum of £299,167. There was no suggestion in the Letter that the sum of £299,167 related, in whole or in part, to services yet to be provided, or that it was a sum to be paid in advance of the provision of any services, or in advance of completion of some services agreed to be supplied. Leaving aside any background circumstances which might be material to the proper construction of the Letter, the obvious way in which to construe the Letter was as an agreement to compromise a claim on the part of NVA to be paid an amount in respect of services which had been provided to Mr. Martins, but in relation to which no price had previously been agreed. If that was, in truth, the nature of the agreement, it would have been amply supported by consideration moving from NVA, that consideration being forgoing a claim to be paid a reasonable, but unascertained, sum for services rendered in return for agreement on the part of Mr. Martins to pay a specified sum. That analysis, however, depended critically upon NVA having already done some work for Mr. Martins for which he was liable to pay.

As I have already noted, in the Amended Defence served on behalf of Mr. Martins it was contended that in fact NVA had, by the date of the signature of the Letter by Mr. Martins, done nothing for him, and thus that the apparent agreement contained in the Letter was not supported by consideration. The same points were made in the original Defence. In answer to the original Defence Mr. Nathaniel prepared and served a Reply to Defence. The Reply, bearing a statement of truth signed by Mr. Nathaniel and dated 2 March 2009, included these paragraphs:-

“3.

As to paragraph 3 of the Defence, the written agreement dated 17 July 2007 was signed by the Defendant on 18 July 2007. No past services had been rendered by the Claimant for the Defendant at the time this agreement was entered into. As is clear from the information provided in the Claimant’s Reply to the Defendant’s Part 18 Request (the “RRFI”), the Claimant carried out negotiations on behalf of the Defendant between July 2007 and January 2008.

4.

As to paragraphs 5 and 6 of the Defence, the written agreement dated 17 July 2007 governed the provision of future services provided by the Claimant on behalf of the Defendant in relation to the Defendant’s image rights. It is accepted that at the time the agreement was signed no such services had been carried out by the Claimant.”

In the light of those admissions that no work had been undertaken by NVA for Mr. Martins prior to his signature on the Letter it seemed that there was no consideration for the apparent agreement contained in the Letter, and so it was not binding upon Mr. Martins as a matter of law, unless, as was contended in the Reply to Defence, upon proper construction of the Letter it related not to past services, but to future services.

In Mr. Nathaniel’s first witness statement, at paragraphs 9 to 16 inclusive, he dealt with his meetings with Mr. Martins on 16 and 17 July 2007, and the immediate aftermath. He said:-

“9.

My first meeting with the Defendant was at the Malmaison Hotel in Newcastle on 16 July 2007 at around 7pm. I attended along with my colleagues Anthony Douglas and Chika Madubuko (one of the Claimant’s talent assistants). The Defendant attended with Errol and a man called Toyin, who was the Defendant’s household assistant. We met in reception (I was staying at the hotel) for about 5 minutes and then continued the meeting up in my room.

10.

I explained to the Defendant the assistance we could give him and the type of services which we offered. In particular we discussed the fact that he was not being paid anything for his image rights and that this was a right which should be fully exploited and that we could help him with this issue. This seemed to be his main concern. The Defendant instructed me to press ahead with the negotiation of the deal with Newcastle and he signed the letter of authority so that I could act on his behalf. I attach to this statement marked “CN2” a copy of the signed authority letter. The Defendant was very insistent that a deal in relation to the image rights needed to be sorted out as an absolute priority. The Defendant was having a lot of financial problems (see paragraph 31 below) and needed this source of income to materialise as quickly as possible.

11.

We also discussed his various sponsorship deals. I discovered that he had deals with Pepsi, Peak Milk, Vixen Enterprises Limited (a mobile phone company in Nigeria) and Nike. However, although he had sponsorship deals in place with all of these companies, he was not receiving any payments under them. He did not have copies of any of the contracts and had therefore been unable to pursue these revenue streams. The Defendant informed me that his previous agent, a Mr. Bastenelli who had represented the Defendant in Italy when he played for Inter-Milan, had the contracts but was refusing to hand them over as the Defendant owed him money.

12.

I indicated to the Defendant that if he wanted us to assist him then we would need to have him sign a contract with us. I gave him a copy of a draft representation agreement (which Hammonds had previously drafted for me). A copy of that draft agreement is attached to this statement marked “CN3”. The Defendant wanted us to start sorting things out straight away but he was in some difficulty as he was still under an agency agreement with Stellar and, in theory, Mr. Bastenelli in Italy. The Defendant said that it would therefore be difficult for him to sign a contract with us. I indicated that I could take on the business management and commercial agreement roles that he wanted me to undertake, without becoming his official agent, and he could then sort out the issues that he had with his current agency companies. I indicated at this meeting that our usual fee was a 20% commission (plus VAT) on any monies the Defendant received as a result of the work we undertook for him. The Defendant agreed with this deal. It was agreed with the Defendant that we would get things moving while he and Errol considered the draft representation agreement – we did however begin the work on the basis that the agreement would be signed.

13.

I indicated that although I was prepared to wait until the Defendant signed the representation agreement in respect of the sponsorship work, I needed to protect NVA in some way in relation to all the work we were doing in the negotiation of the Defendant’s image rights contract with Newcastle and assistance in the day to day management of his other affairs. I was happy to take the Defendant’s word that we would be paid the agreed 20% commission on our work for the sponsorship deals but needed some written assurance that the work we were undertaking for the image rights deal and his day to day management would be remunerated. We did discuss with the Defendant the possibility of paying us a monthly retainer (which many of our other clients do) but he said he could not afford it. We therefore agreed that the Defendant would pay a fixed fee of £299,167 (plus VAT) in respect of (1) the work we had already undertaken for him, (2) the image rights deal work we needed to undertake and (3) the day to day management of his affairs which we would continue. For the remainder of this statement I will refer to this agreed fee as the “Image Rights Fee”. I cannot recall precisely how we arrived at this figure but I do recall it was calculated as a percentage of the total value of the image rights deal we were hoping to agree with Newcastle. I did however make it absolutely clear to the Defendant that this fee would be payable immediately by him and that it was not contingent on him receiving all the monies due to him from Newcastle under the image rights deal (which in any event would normally be due to be paid to the Defendant in instalments over the period of the Defendant’s contract with the club). The Defendant agreed with this.

14.

I recall that at this first meeting the Defendant took a particular interest in a Cartier watch I was wearing and commented that he really liked it. I recall this specifically as when I met with him again the next day (see paragraph below) he had been out and bought exactly the same watch and was wearing it.

15.

The next day, 17 July 2007, we met again with the Defendant in order to, we hoped, sign up the deal. The people who were present were myself, Anthony Douglas, the Defendant, Errol and Toyin. The meeting took place very late at the hotel (around 11/11.30pm). I provided the Defendant with a letter of appointment which set out the fact that I had already begun to undertake work on his behalf, that I would act for him in the negotiation of his image rights and other related matters, and the fee which had been agreed between us. The Defendant signed this letter in front of myself and Errol. A copy of the signed letter is exhibited to this statement marked “CN4”. [It is the Letter] I note from the letter that when the Defendant signed it he dated it 18 July 2007. I suspect that this is because, by the time the Defendant did sign, it was already after midnight and therefore the next day. Once the Defendant had signed with us we all went out [to] a club in Newcastle to celebrate. The diary entry in CN1 “Digital/love dough with Obafemi Martins & Errol” is a reference to the club that we went to that night.

16.

In the following days and weeks we began the work of sorting out all of the Defendant’s affairs. In particular we focussed on the negotiation of his image rights deal and on trying to track down the sponsorship agreements so that we could begin to gather in all the monies which were owed to the Defendant. I recall that early on we also helped the Defendant to find a new property and to secure him a mortgage. I went with him to several viewings and put him in touch with the necessary agents and mortgage brokers. My diary print out at exhibit “CN1” shows 4 diary entries relevant to the work we did for the Defendant in the two days immediately following our initial meeting. The Defendant and I had two face to face meetings and two conference calls with Andrew Osbourne [sic – it seems that Mr. Osborne in fact spells his surname without a “u”] at Hammonds and the Defendant instructed Hammonds to press ahead with the image rights deal and also instructed them to assist his brother and Toyin with their immigration applications and to assist in the legal action which his former agent Mr. Bastenelli was threatening.”

The account given in that part of Mr. Nathaniel’s first witness statement is somewhat confusing. The first sentence of paragraph 16 seemed entirely consistent with the admissions in paragraphs 3 and 4 of the Reply to Defence that, at the time Mr. Martins signed the Letter, NVA had done nothing in terms of providing services for him. However, there was a reference, in paragraph 13, to “the work which we had already undertaken for him”, and a reference in paragraph 15 to “the fact that I had already begun to undertake work on his behalf”. What this work was, and how NVA had already begun to undertake it, were not really investigated in cross-examination because Mr. Nathaniel contended for an account of events which was not foreshadowed in his witness statement. Before coming to that it is material to note that, on the face of the witness statement, Mr. Nathaniel had not had contact with Mr. Martins prior to the first meeting on 16 July 2007, the business of the meeting on 16 July 2007 was to discuss what services NVA could provide for Mr. Martins, and when Mr. Martins indicated interest in obtaining the services of NVA Mr. Nathaniel explained that if he wanted assistance he would need to sign a contract with NVA. None of that is suggestive of there being any opportunity for NVA to provide any services prior to the signature by Mr. Martins of the Letter. Again, on this account, the need for the Letter only arose as a result of the course of discussions on 16 July 2007.

It was plain, and Mr. Nathaniel accepted, that he was in error in his first witness statement in contending that Mr. Martins signed what he described at paragraph 10 as an “authority letter” at their first meeting on 16 July 2007. The letter exhibited was dated 17 July 2007 and was in these terms:-

“Letter of authority to act

I, Obafemi Martins, hereby authorise Chris Nathaniel of NVA Management Limited to act on my behalf in relation to all discussions and negotiations with Newcastle United Football Club (the “Club”) in connection with the exploitation of my “image rights” by the Club.”

From the terms of the e-mail sent by Mr. O’Flynn at 10.55 on 17 July 2007 to Mr. Nathaniel it is plain that that letter was first produced on 17 July 2007 itself, for in the second paragraph of that e-mail Mr. O’Flynn wrote:-

“I also attach a brief letter of authorisation which notifies Newcastle that NVA are authorised to act on Obfemi’s behalf in any negotiations or discussions regarding the exploitation of his image rights. The letter will obviously need to be signed by Obafemi.”

The terms of Mr. O’Flynn’s e-mail sent at 10.55 on 17 July 2007 suggest that both the Letter and the letter of authorisation were documents the need for which had only recently arisen – most obviously following the meeting between Mr. Nathaniel and Mr. Martins on 16 July 2007.

As mentioned in the first witness statement of Mr. Nathaniel, attached to that witness statement was a print-out of his electronic diary relating to his dealings with, or on behalf of, Mr. Martins insofar as those dealings involved meetings. Mr. Nathaniel explained in cross-examination that he had not had access to at least the earlier part of that record at the time the Reply to Defence had been prepared. Thus, so he contended, when it was admitted in the Reply to Defence that NVA had done no work for Mr. Martins prior to the signature of the Letter by Mr. Martins, he had not reminded himself, as he did subsequently remind himself, from the electronic diary, that in fact work had been done for Mr. Martins before the signature of the Letter by him.

It is difficult to see from the electronic diary entries what it was that allegedly prompted Mr. Nathaniel to remember that NVA had done some work for Mr. Martins prior to the signature of the Letter by Mr. Martins. The earliest entry in the electronic diary was for 29 May 2007. There were then two meetings on 7 June 2007, followed by the first actual meeting with Mr. Martins himself on 16 July 2007. The descriptions of the meetings prior to 17 July 2007 in the electronic diary were:-

“Meet with Errol Olowu @ 4 Seasons Hotel re: Obafemi Martins com opps

Breakfast meet Errol Olowu @ 4 Seasons re: Obafemi/Sam meeting

Meet Sam Allardyce, Mark Curtis & Errol re: Obafemi Martins @ Royal Garden Hotel

Meet Obafemi Martins @ Malmaison re: Newcastle FC/P.Diddy JV”

The first and second of these meetings were identified as taking place in London E14. The first was between 20.30 and 23.00 on 29 May 2007, and the second was between 09.30 and 10.30 on 7 June 2007. The third meeting was in London W8, between 11.15 and 13.15 on 7 June 2007. The fourth meeting was noted as taking place in Newcastle between 18.00 and 19.00 on 16 July 2007. Only the first and fourth entries included any indication of the purpose of the meeting. What “com opps” were was not explained in evidence, but possibly referred to commercial opportunities in relation to Mr. Martins. Whether they were opportunities open to Mr. Martins himself, or opportunities open to others to benefit from him, was not clear. “P. Diddy JV” seemed to indicate a joint venture with, or concerning, someone called P. Diddy.

Mr. Nathaniel dealt with the meetings with Mr. Olowu and Mr. Allardyce in his first witness statement in this way:-

“4.

NVA’s first dealings with the Defendant were in May 2007 when Anthony Douglas (one of our football scouts) contacted me to say that he had met with a DJ called ‘Pete’ in Newcastle who had given Anthony the telephone number of Errol Olowu (who claimed to be representing the Defendant at the time) and told him that Errol and the Defendant were interested in talking to us. I indicated that we were interested in speaking with the Defendant and an initial meeting was arranged between myself, Anthony Douglas and Errol. We met at the Four Seasons Hotel in Canary Wharf on 29 May 2007. I attach to this statement marked “CN1” a print out of relevant diary entries – the meeting with Errol on the 29 May 2007 is the first entry. Errol explained that he was the person who was ‘looking after’ the Defendant at that time. We spoke about several of the issues that the Defendant was facing which he needed assistance with such as brand building, structuring his image rights deal, help with collecting monies under various sponsorship deals and the possibility of negotiating an improved contract with Newcastle United Football Club (for whom the Defendant was playing at the time). At the time Errol and I met, the Defendant was represented by the Stellar Agency but Errol informed me that they were not impressed with the service they were being offered. I indicated to Errol that our normal fee arrangement was that we took a 20% (plus VAT) commission of all our clients’ income. Errol indicated that the deal which he wanted to reach with us was that he would receive half of any of the 20% commissions which we charged to the Defendant on the basis that he had introduced the Defendant to us and would continue to act as his advisor. I agreed to this deal. I recall Errol asked me during this first meeting whether I was a FIFA registered agent. I informed him that I was not and that but that [sic] this would not effect my representation of the Defendant as any club transfer deal would be negotiated with a lawyer who had the capacity to advise on a transfer deal (thereby meaning that there was no need for a FIFA agent). The meeting ended with Errol asking me to start work on the various areas we discussed and he promised to arrange a meeting for myself and the Defendant.

5.

At some point after my meeting with Errol, I was provided with the Defendant’s mobile number and we spoke on the phone. I reiterated that we were keen to assist the Defendant and we arranged to meet when he returned from his holiday in Italy.

6.

A few days later I had arranged a meeting with Sam Allardyce (who at the time was manager at Newcastle United) so that Errol and I could discuss some of the Defendant’s issues with Mr. Allardyce. The meeting was arranged for 7 June 2007 and we met at the Kensington Royal Garden Hotel. I had a brief meeting on that day, in advance of the meeting with Mr. Allardyce. I remember the meeting clearly as it was rather bizarre. Errol assured us that the Defendant would be attending (which was after all the whole point of the meeting). We waited for about an hour and it then became clear that in fact the Defendant was not coming. I wondered whether Errol and the Defendant had fallen out in some way. Mr. Allardyce called the Defendant and spoke to him and was told that he wasn’t attending the meeting. It later transpired that in fact the person who Mr. Allardyce had spoken to was not the Defendant but someone pretending to be him.

7.

We were rather annoyed as Mr. Allardyce and I had taken time out to attend the meeting which in the end came to nothing. Errol told us not to worry as the Defendant had a ‘spiritual leader’ in Nigeria who he consulted and Errol indicated that he would talk to the spiritual leader and get him to persuade the Defendant to meet with us. This all seemed very odd. I recall that a short while later Eroll [sic] contacted me to say that he needed some money for petrol so that he could drive up to Newcastle and speak to the Defendant about having a meeting with us. I met Errol in Cricklewood Broadway and gave him some money for petrol. A short time thereafter a meeting was arranged between myself and the Defendant.

8.

Following my initial conversation with Errol, I had contacted Andrew Osbourne [sic] who is a partner at the law firm Hammonds with a view to instructing him to act for the Defendant in the negotiation of the image rights contract with Newcastle United. Hammonds were a firm I had worked with regularly in the past. Hammonds agreed to act and I began to put the wheels in motion in relation to the deal. I was also involved in chasing the Defendant’s previous solicitors (Teacher Stern & Selby) for them to provide us with the Defendant’s files so that we could establish exactly who the Defendant’s image rights rested with and whether they needed to be assigned to the Defendant personally. I also drafted a pro forma letter of authority to allow Newcastle to deal directly with me in the negotiation of the image rights deal.”

As I have noted, the letter of authority was in fact drafted by Hammonds. However, more importantly, in paragraphs 4 to 8 inclusive of his first witness statement Mr. Nathaniel did not explain that he had done any work for Mr. Martins prior to the signature by Mr. Martins of the Letter. He certainly did not contend that Mr. Martins personally had, at this stage, asked him to do anything. At its highest it seems that all Mr. Nathaniel had done prior to 17 July 2007 was to enquire of Hammonds whether they would act for Mr. Martins in advising him and negotiating an image rights contract with Newcastle, begun “to put the wheels in motion”, whatever that involved, and become “involved in chasing the Defendant’s previous solicitors … for them to provide us with the Defendant’s files”. As the latter would ordinarily be a solicitor/solicitor matter, it is unclear what precisely the involvement of Mr. Nathaniel in that activity was.

Nonetheless, in cross-examination Mr. Nathaniel asserted that he had himself had a telephone conversation with Mr. Martins, probably on 7 June 2007, for five or ten minutes, and in this telephone conversation Mr. Martins told Mr. Nathaniel the matters which concerned Mr. Martins. Mr. Nathaniel told me that he straightaway started working on Mr. Martins’s behalf, in particular seeking to obtain copies of Mr. Martins’s various sponsorship contracts. None of these efforts were evidenced by any documents, because, explained Mr. Nathaniel, all of this work was done on the telephone. I think that he accepted that his first witness statement was silent about these activities, and the alleged telephone conversation on 7 June 2007. At least he did not in terms say in the witness statement at paragraph 5 that the telephone conversation there mentioned was on or about 7 June 2007 and involved Mr. Martins explaining what his concerns were. Rather, as described, the telephone call appeared to relate only to a wish to meet on return from holiday. Mr. Nathaniel said in cross-examination that he had been thinking further about the chain of events since making his first witness statement, and it was in the course of doing that that he recalled the telephone conversation with Mr. Martins on or about 7 June 2007, what Mr. Martins then said, and that the telephone conversation was followed by Mr. Nathaniel starting to do significant work for Mr. Martins.

In his witness statement Mr. Martins put a completely different complexion on his dealings with Mr. Nathaniel, and how they started. He said:-

“8.

Chris Nathaniel of the Claimant was first introduced to me by Rio Ferdinand of Manchester United Football Club and Kieron Dyer of West Ham Football Club around July 2007. The Claimant advised me that apart from the other businesses he was involved in, he was also in the entertainment business and had dealings with Sean Coombes also known as P. Diddy.

9.

Chris Nathaniel of the Claimant advised that P. Diddy was worth at least £500m and was planning to open restaurants in Nigeria and that with my connections there could be a joint venture which could develop into big business. He advised that I needed something to fall back on at the end of my football career which was a very short one.

10.

Chris Nathaniel of the Claimant also advised me that he had connections with Ben Bruce who is hugely important in Nigeria. I would describe Ben Bruce as a combination of Simon Cowell and ITV as he is the main man in entertainment in Nigeria.

11.

Naturally I was excited at the prospect of sitting down and entering in to commercial transactions with the likes of Ben Bruce who is a major force in African entertainment and indeed in the world and of course P. Diddy who is an internationally acclaimed superstar. No commercial dealings have been made with any of these people and I soon realised that Chris Nathaniel was a con artist.

12.

Chris Nathaniel of the Claimant subsequently advised that he was promoting the American artist Mario who would be attending London for a concert and invited me to invest some money as I would make a hefty profit on my investment.

13.

Chris Nathaniel of the Claimant maintained at all times that this was one of his many businesses and as it was something that he had done many times in the past we were guaranteed huge profits.

14.

I paid the Claimant the sum of £10,000 by bank transfer … I have never received any money from the Claimant including my original investment as the Claimant advised that the deal turned out to be a loss.

15.

Prior to this though the Claimant had promised that he could provide me with all the support that I needed in the UK as I seemed to be on my own in Newcastle. I trusted Chris Nathaniel of the Claimant as he claimed to be Nigerian and of the same ethnic background as myself.

16.

Chris Nathaniel of the Claimant said that he wanted to assist me in all my matters as he maintained that we had a great future together. At no time did we agree that he will be paid any salary or profits or percentages as I did not even understand the exact role he had in mind for himself. He kept coming up with different ideas all at the same time.

17.

There were no specific agreements as to payment from me to Mr. Nathaniel and my understanding was that Mr. Nathaniel would earn money from the music ventures.

18.

The more I trusted Chris Nathaniel of the Claimant the more he manipulated me and entered into my life and without any request from me would say certain things had to be done in a particular way and other things had to be done in another way.

19.

Chris Nathaniel of the Claimant said he was a commercial manager for a lot of top people in show business and that my affairs had to be properly organised if I was going to be doing business with the likes of Ben Bruce, P. Diddy, Mario and so on. Chris Nathaniel of the Claimant was therefore able to gain access to my correspondence including my Contracts, bank statements and other documents.

20.

…

21.

However because I trusted Chris Nathaniel of the Claimant and allowed him free access into my home and my correspondence he took it upon himself to enter into discussions with Pepsi, Peak Milk and Nike. The discussions he entered into with them did not provide me with any additional benefit.

22.

…

23.

Chris Nathaniel of the Claimant and I never at any time agreed that he will be paid any money for the services that he claimed to provide. It was Chris Nathaniel of the Claimant who kept insisting I should be on better deals with NUFC [Newcastle], Pepsi, Peak Milk and Nike. He did not introduce one single deal to me.

24.

I did however pay the Claimant large sums of money but this was because he advised me and I believed him when he claimed that I would be going into business with the likes of Ben Bruce, P. Diddy and other American superstars and that we could build a business empire in Nigeria.

25.

Chris Nathaniel of the Claimant had also without any request from me decided that I should request a better Contract from NUFC and prepared the document titled “Financial Breakdown”. He worked out that he would be due the sum of £299,167.00 from the new Contract if it was agreed by NUFC. The figure represents one third of 5% of the total Contract, which is identical to the sum the Claimant is alleging is owed for image rights advice. There is now produced and shown to me an Exhibit marked “OM1”, a copy of the “Financial Breakdown” document appears at page 1.

26.

Chris Nathaniel of the Claimant subsequently advised me that as he was not a football agent he would not be paid by NUFC which would explain why he drafted the agreement dated 17^th July 2007. I do not recall signing this document but did sign various other documents which I believed were to do with our proposed business ventures and letters of authority for the Claimant to act for me. He subsequently drafted a similar but more detailed agreement dated 23^rd October 2007 and tried to get me to sign it but I refused.

27.

The claim against me is based on a written “agreement” which purports to be for image rights services already performed. In fact the sum claimed is not based on image rights rather it is set out in a document titled “Financial Breakdown” prepared by Chris Nathaniel of the Claimant. As may be seen the sum claimed represents a percentage of the total figure which Mr. Nathaniel considered would have been due to the Claimant had I moved to another club or secured an improved Contract with NUFC.

28.

It is apparent that the percentage is based not only on any improvements in terms which Mr. Nathaniel might have been able to secure but the entire package the greatest part of which had already been agreed. This document was prepared by Chris Nathaniel who advised that I deserve a better deal from NUFC. I did not ask him to prepare the document.

29.

As Chris Nathaniel of the Claimant was very convincing I believed him. He had been putting me under pressure to pay him some money as he claimed we would eventually make a lot of money together. He suggested that as he was assisting me in sending invoices to Pepsi, Peak Milk and Nike that I should pay him 20% of any monies received for which he had assisted me in sending an invoice.

30.

Mr. Nathaniel informed me he was sure NUFC would offer me a new, improved contract. He said that if I allocated monies to him in the way referred to at paragraph 29 above then, if I was offered a new contract, (in fact he was certain this would be the case because NUFC did not want to transfer me) then I would not have to pay him a lump sum payment of £299,167.00 which he said would otherwise have been payable to him when the contract was signed.

31.

In other words Mr. Nathaniel told me that by allocating him a share of my royalties I could effectively “smooth out” the payment to be made to him and avoid a single, lump sum payment, with the consequent cashflow benefit for me. I recognise that I have been very naïve in my financial dealings with Mr. Nathaniel who I think has taken advantage of me.

32.

Chris Nathaniel of the Claimant did assist me with some administration even though he did this without being asked and should be rewarded for the time that he put in however I was surprised to note that I had already paid him over £300,000.00 and even more surprised that he is asking me to pay him another £300,000.00.”

Mr. Martins’s case essentially was that Mr. Nathaniel had sought to interest him at first in the possibility of joint ventures involving him in the entertainment industry, and that Mr. Nathaniel then really barged into Mr. Martins’s life, getting involved, without Mr. Martins asking, in pursuing payment by sponsors under existing agreements and in proposing a new contract with Newcastle.

Mr. Martins told me in cross-examination that in the first instance it had been Mr. Nathaniel who had approached him, rather than the other way round. He also said that he was not interested in re-negotiating his contract with Newcastle, but that Mr. Nathaniel said that he would try to negotiate a transfer to Arsenal, and Mr. Martins was interested in that possibility. He said that Mr. Nathaniel had offered to seek to obtain payments due under Mr. Martins’s various sponsorship agreements, and he, Mr. Martins, had been content for Mr. Nathaniel to get on with that activity, if Mr. Nathaniel wished. Mr. Martins told me that he thought that it was right that NVA should be paid for any work which it had done for him which was useful.

It was not in dispute that Mr. Nathaniel did indeed produce a document entitled “Obafemi Akinwunmi Martins 39 Baltic Quays Gateshead Newcastle NE8 3QW Financial Breakdown” (“the Financial Breakdown”). A section in the Financial Breakdown entitled “Wages” set out various elements and concluded in this way:-

“Total value of deal £17,950,000

Advisers

£299,166.66 (NVA Mgt commercial advise [sic])

£598,333.33 (Mark Curtis & Stella)

Total Advisers fee

£897,499.99”

Five per cent of £17,950,000 is £897,500. Give or take a penny, one third of £897,500 is £299,166.66. The case for Mr. Martins was that the figure of £299,167 which was set out in the Letter was calculated in the way I have explained, as one third of five per cent of £17,950,000. Mr. Oluwole Osibona, a solicitor who is a partner in the firm of Messrs. Freemans, who acted on behalf of Mr. Martins in this action, gave evidence that he had discussed the figure of £299,167 with Mr. Nathaniel on an occasion in July 2008. In his witness statement prepared for the purposes of this action Mr. Osibona said:-

“9.

Chris Nathaniel advised that as he was not a FIFA Licensed Agent he would be unable to claim the usual 5% remuneration that an agent would be entitled to. The figure of £299,167.00 would be his fee so that he would not be left out of pocket in the event that the Defendant either secured an improved Contract with Newcastle United Football Club as a result of his actions or moved to another Football Club.

10.

He then showed me a document headed “Financial Breakdown” and explained how he had arrived at the figure of £299,167.00. He advised that the sum total represented 5% of the total value of the new Contract he was trying to secure on behalf of the Defendant from Newcastle United Football Club and that he would claim a third of the 5% which was equivalent to £299,167.00 while the other parties who were also working for the Defendant would be entitled to two thirds of the 5%.”

Mr. Nathaniel in cross-examination denied that he had ever had such a conversation with Mr. Osibona. Mr. Nathaniel contended that the figure of £299,167 was not calculated as one third of five per cent of £17,950,000, although he accepted the arithmetic as accurate. He was not able to say how precisely the figure of £299,167 had been calculated. He said that it emerged in discussion between him and Mr. Osborne. According to Mr. Nathaniel, the figure of £299,167 appeared in the Financial Breakdown because that document was intended to identify costs payable by Mr. Martins to his advisers, and the liability to NVA of £299,167 was one of those costs.

It was accepted that Mr. Nathaniel instructed Hammonds to prepare the Draft Management Agreement. In cross-examination Mr. Nathaniel agreed that the Draft Management Agreement covered what he contended was the scope of the Letter. In particular, the Draft Management Agreement included these provisions:-

“3.2

In addition to the Services set out above, NVA shall also provide the Player with advice regarding the exploitation of the Player’s Image Rights and other matters ancillary thereto (but not including those matters set out in clause 3.1(a) above, which, for the avoidance of doubt, shall be performed by NVA as part of the Services) (the “Image Rights Advice”).

…

5.

(b) In consideration of NVA providing the Image Rights Advice, the Player shall pay to NVA the sum of £299,167.00 (exclusive of VAT, which shall be payable by the Player in addition thereto) (the “Image Rights Fee”).”

Mr. Nathaniel told me that the Draft Management Agreement was intended as a more formal, long-term agreement between NVA and Mr. Martins and that, had Mr. Martins signed the Draft Management Agreement, the Letter would have been torn up.

It was not in dispute that Mr. Martins had in fact paid to NVA sums at least of the order of £306,642.15. I put it in that way because the sums totalling £306,642.15 were evidenced by a letter dated 23 February 2009 written by Coutts & Co., Mr. Martins’s bankers, to Messrs. Freemans, but it was also common ground that some sums were paid in cash. In particular Mr. Martins paid NVA an amount of US $10,000 out of a sum of US $30,000 collected on his behalf by Mr. Michael Adelakun of NVA from Pepsi in Nigeria. The sums paid out of Mr. Martins’s personal bank account with Coutts & Co. to NVA were £10,000 on 24 January 2008, £135,000 on 25 January 2008, £88,883.91 on 22 February 2008, £50,062.50 on 24 April 2008 and £13,996.65 on 4 June 2008. The payments of £135,000 and £50,062.50 were attributed by NVA to payments on account of the sum of £299,167, plus Value Added Tax, said to be due under the Letter. In addition, a sum of £8,699.09 was paid to NVA out of an account of a company called Oba Score Ltd., which was established as a commercial arm of Mr. Martins.

The amounts paid by Mr. Martins or his company to NVA were rather in excess of the amounts invoiced to him by NVA. The payment of £135,000 was never invoiced at all, it seems, but was paid by Mr. Martins after he had received from Newcastle the first amount due under the Image Rights Contract, which was £675,000. That sum Mr. Martins invoiced to Newcastle on 16 January 2008. £135,000 is 20% of £675,000. The second sum paid under the Image Rights Contract was £250,312.50. When that was paid NVA did raise an invoice, dated 21 April 2008. The narrative on the invoice was:-

“20% Image Rights Commission March 31^st Payment and balance paid from 1^st Image rights payment (Total sum received from Newcastle FC £250,312.50)”

The wording on the invoice was not consistent with the obligation which in this action it was contended on behalf of NVA had been accepted by Mr. Martins under the Letter. Rather, it was consistent with an obligation on the part of Mr. Martins to pay to NVA twenty per cent of sums received by him.

NVA raised three invoices, dated, respectively, 5 October 2007, 7 February 2008 and 14 May 2008, in relation to receipt by Mr. Martins of money from Nike, which invoices Mr. Martins settled. Each invoice sought payment to NVA of twenty per cent of what Mr. Martins had received. The total sums paid by Mr. Martins were £45,633.29.

All the other invoices raised by NVA which Mr. Martins paid, save one, related to reimbursement of costs incurred by NVA for Mr. Martins, principally, but not exclusively, concerning air tickets. The sums involved totalled £18,342.16. The one invoice which was not said to be either based on twenty per cent of a sum received by Mr. Martins or a claim for reimbursement of expenses was an invoice dated 7 February 2008 in the sum of £2,000 the narrative on which was, “Ghana Lifestyle services (Locating accommodation, transport and various other requests) Dec 07 till Jan 08”.

Payment of sums to NVA following receipt of amounts paid under the Image Rights Contract was relied upon heavily by Mr. Temmink as evidence that Mr. Martins accepted that he was liable to pay the sum specified in the Letter as a result of the assistance of NVA in obtaining the conclusion of the Image Rights Contract and the payments made by Newcastle thereunder. Mr. Temmink also relied upon the payment of invoices raised by NVA in respect of receipt by Mr. Martins of money from Nike as evidence that he had agreed to pay NVA twenty per cent of all sums received under sponsorship agreements.

It was not in dispute that Mr. Nathaniel performed some role in the conclusion of the Image Rights Contract, but the case for Mr. Martins was that that was in the nature of an officious intrusion which he was prepared to permit, rather than assistance which was actively sought from NVA and which was of value to Mr. Martins. Mr. Nathaniel was asked in cross-examination whether he contended that he had done something of value for Mr. Martins in relation to the Image Rights Contract, and, if so, what. Mr. Nathaniel accepted that all of the legal work was undertaken for Mr. Martins by Hammonds. He also accepted, I think, that the major problem encountered in the conclusion of the Image Rights Contract was how best to structure it in order to be as advantageous as possible to the parties in taxation terms. However, he contended that he dealt with the commercial terms on behalf of Mr. Martins. Asked what there was to deal with commercially, given the terms of Schedule 2 to the Player Contract, he said that he had ensured that Newcastle agreed to pay image rights fees as from the date of the Player Contract, and that, but for that intervention, the image rights fees paid would not have been calculated as from 23 August 2006. He also asserted that he impressed upon the secretary of Newcastle that, if Newcastle would not agree to pay image rights fees as from that date, that would annoy Mr. Martins and provide a disincentive to him to do his best for Newcastle. I have to say that that does seem to me to be a glimpse of the blindingly obvious. I doubt that Newcastle would have failed to appreciate the point without the insight of Mr. Nathaniel.

In the end, I think, the real question in this action in relation to the Letter is whether, as a matter of construction, in the light of the background against which Mr. Martins came to sign it, Mr. Martins agreed to pay to NVA an amount of £299,167, plus Value Added Tax, in respect of the services which had been provided and were to be provided in the future concerning Mr. Martins’s image rights. The Letter itself was expressed in terms only of what had already been done. The issue is whether, that notwithstanding, the agreement of the parties, on proper construction, was that the sum mentioned was to cover past and future services. In the circumstances the resolution of the point depends on the evidence of Mr. Nathaniel, on the one hand, and that of Mr. Martins and Mr. Osibona, on the other, as to the circumstances in which Mr. Martins came to sign the Letter; what work, if any, NVA had carried out for Mr. Martins prior to 17 July 2007; and how the figure of £299,167 was calculated.

I was very unimpressed by Mr. Nathaniel as a witness. His style of speech and presentation were superficially attractive, but often the style obscured a lack of content. He seemed adept at avoiding being specific by embarking on lengthy apparent explanations. He was prone to gross exaggeration. He contended that he had devoted the whole of his time, seven days a week for about nine months, to the conclusion of the Image Rights Contract. I am satisfied that he was quite prepared to say whatever he thought suited NVA’s case, and that he professed an entirely fabricated recollection of having carried out work for Mr. Martins before 17 July 2007 once it had been pointed out to him that, on the face of the Letter, it related to past consideration only and what that meant as a matter of law. The truth, I find, was as pleaded in the Reply to Defence, that nothing was done for Mr. Martins prior to him signing the Letter. I did not feel able to accept the evidence of Mr. Nathaniel where it conflicted with the evidence of Mr. Martins or that of Mr. Osibona.

Mr. Martins described himself in his witness statement, accurately as it seems to me, in this way:-

“2.

I was born in Lagos, Nigeria and grew up in impoverished conditions as both my parents were illiterate. It was very tough for me and the rest of my family in those days but my talent as a footballer enabled me to escape a life of poverty.

3.

I have never really been interested in education or paperwork in general and could not wait to leave school so that I could go and play football. It is fair to say that I was not the brightest in class and did not achieve top grades. Football has always been the love of my life and that is what I always thought about.

4.

When I moved from Inter Milan to Newcastle United Football Club (NUFC) in August 2006 I was not even aware of the contents and provisions of my professional cont[r]act. It was after I had signed it and arrived in Newcastle that I was made aware of the provisions.

5.

I have never been and I am still not financially or commercially sophisticated but find that as a professional footballer earning a great deal of money I come across a lot of people who are willing to offer services and advice.”

Mr. Adelakun gave his impression of Mr. Martins in his witness statement:-

“The Defendant was generally a very decent person and was never rude to me in any way. He seemed to me to be somebody who had been taken advantage of by the people around him and, perhaps because of his lack of formal education, he found it very hard to challenge such people.”

Mr. Martins was born on 28 October 1984, so he is just aged 25. In July 2007 he was 22. He came from a disadvantaged background. He professed no great intellect. He was not, and is not, sophisticated in financial or commercial matters. However, he has a skill which has enabled him to transform his circumstances by earning sums of money which were beyond his contemplation until comparatively recently. Although Mr. Martins speaks English, it is not his first language. His first language, he told me, is Yoruba. While I am satisfied that Mr. Martins’s command of English is adequate for the purposes of ordinary communication about matters of concern in daily life, he has difficulty understanding concepts of any complexity expressed in English. He can read English, but it was obvious, from his reaction when asked to read documents written in English during the course of his evidence, that he was not comfortable reading passages of any length. It was suggested by Mr. Temmink that Mr. Martins in fact spoke and understood English perfectly well, but affected to have difficulty in understanding as a ploy to gain advantage in the witness box. I do not accept that. I was impressed by Mr. Martins as an honest and honourable man, doing his best, within the limits of his understanding of the English language and his ability to communicate his thoughts accurately in that language, to give a true and correct account of his dealings with Mr. Nathaniel. I accept his evidence without reservation. In short, it seems to me that Mr. Martins was, in 2007, a naïve and unsophisticated young man with massive amounts of money who was very vulnerable to more sophisticated operators lacking in scruples.

I am satisfied that Mr. Nathaniel dazzled Mr. Martins, with the prospects of a glittering business relationship with people from show business, into signing documents which Mr. Martins thought would lead him in that direction. One of those documents was the letter of authorisation dated 17 July 2007. Another was the Letter. I am satisfied that the Letter did not embody any agreement between Mr. Martins and NVA, actual or prospective, and it should not be construed in the way for which Mr. Temmink contended. I reject the alternative case of NVA raised in the Amended Reply to Defence that Mr. Martins and Mr. Nathaniel actually agreed orally that Mr. Martins would pay NVA £299,167 for advice on his image rights. Had the Letter, counter-signed by him, contained an agreement legally enforceable, Mr. Martins would have been bound by it and bound to pay any sum agreed to be paid. However, I find that Mr. Martins is entitled to adopt the position taken on his behalf by Counsel, Mr. Martyn Barklem, that the written agreement sued upon is unenforceable for want of consideration.

Mr. Temmink, rightly, expressly eschewed the suggestion that Mr. Osibona was deliberately setting out to mislead the court by his evidence. However, it was suggested to him that his important evidence as to his discussion with Mr. Nathaniel about the calculation of the figure of £299,167 and the purpose of the Draft Management Agreement was erroneous. It is fair to say that it appeared in the course of his cross-examination that, in various respects, for example whether Mr. Osibona’s firm was formally acting on behalf of Mr. Martins at the time of the meeting with Mr. Nathaniel, Mr. Osibona’s evidence was incorrect. However, I have no hesitation in finding that Mr. Osibona was doing his best, in accordance with his recollection, to give accurate evidence, and that his evidence of his conversation with Mr. Nathaniel was correct.

It follows from my accepting the evidence of Mr. Martins in preference to that of Mr. Nathaniel, where they differ, that I am not satisfied that Mr. Martins ever agreed to pay NVA a commission of 20% on all sums received by Mr. Martins under his various sponsorship contracts. Mr. Martins was pressed by Mr. Temmink on the question of paying invoices raised by NVA expressed to relate to sponsorship money received from Nike and calculated at 20% of the sums received. Mr. Temmink asked, “The fact that you paid the invoices shows, does it not, that you had agreed to pay commission at 20%?”. The logic of the question was impeccable. The answer from Mr. Martins was that he paid because he thought that Mr. Nathaniel was going to obtain all of the benefits of the deals with P. Diddy and Ben Bruce, and a transfer to Arsenal, which Mr. Nathaniel had promised. Mr. Martins only stopped paying when he came to the conclusion that the promised benefits were not going to materialise. In effect, therefore, Mr. Martins paid the invoices because he did not wish to upset Mr. Nathaniel and put in jeopardy the benefits promised. Mr. Martins also said that Mr. Nathaniel had suggested that the sums invoiced were in the nature of being on account of the sum of £299,167 which Mr. Martins would have to pay NVA when his transfer to Arsenal had been achieved. In a more experienced or sophisticated person Mr. Martins’s explanations might appear unsatisfactory, but, in the light of my assessment of him, I find them entirely convincing. The claims based on an alleged agreement to pay 20% commission therefore fail.

The alternative claims for reasonable remuneration for work done by NVA as advanced by Mr. Temmink involved the need to consider three types of alleged work. The first was advice and assistance in concluding the Image Rights Contract. The second was assistance in obtaining payment of sums due to Mr. Martins under sponsorship agreements. The third was the “lifestyle management” services provided by NVA. There was no pleaded claim for payment of a reasonable sum for “lifestyle management” services. However, in his closing submissions Mr. Temmink suggested that the undertaking of those services and their value to Mr. Martins should be taken into account in determining, if it was necessary to determine, the value to be attributed to the services in respect of which there was a claim for payment of a reasonable sum.

Such advice and assistance as NVA provided in connection with the conclusion of the Image Rights Contract was, as I have already noted, unsolicited, although permitted, by Mr. Martins. What was done was obscure. Despite the claim of spending a great deal of time on the matter, Mr. Nathaniel seemed unable to say what he, or any other representative of NVA, had actually done in connection with the Image Rights Contract, beyond persuading, he said, Newcastle to pay image rights fees from 23 August 2006 rather than from the date of the Image Rights Contract. I reject his evidence that he secured even that benefit. By paragraph 13 of Schedule 2 to the Player Contract Newcastle had at least encouraged Mr. Martins to think that he would be paid image rights fees from 23 August 2006. There was no evidence, other than the implicit suggestion on the part of Mr. Nathaniel, that Newcastle was ever inclined not to pay image rights fees as from that date. The potentially disincentive effect of declining to pay as from 23 August 2006 was obvious. Mr. Martins was clearly regarded by Newcastle as a valuable member of its team. The evidence of Mr. Nathaniel that his intervention was of financial benefit to Mr. Martins seems to me to fly in the face of reality, and I reject it.

In the result, as I reject the evidence of Mr. Nathaniel, there was no reliable evidence of what NVA had done in connection with the conclusion of the Image Rights Contract, and no evidence at all that whatever NVA had done was of any benefit to Mr. Martins. If I had reached a different conclusion, and it had been necessary to try to evaluate the worth of what NVA had done, there was simply no evidence to justify any particular assessment. There was no evidence as to how such advice and assistance as NVA claimed to have provided to Mr. Martins was usually evaluated, whether by a percentage of the value of the contract, a lump sum fee, a fee based on the time expended, or in some other way. On the evidence of Mr. Nathaniel the calculation of the figure of £299,167 was unexplained, while on the evidence of Mr. Martins and Mr. Osibona, which I accept, that figure had nothing to do with the matter of the Image Rights Contract.

Consequently I find that NVA is not entitled to any remuneration in respect of whatever it did in relation to the conclusion of the Image Rights Contract.

I accept the evidence of Mr. Martins that he never asked Mr. Nathaniel, or anyone else at NVA, for assistance in recovering sums due under his contracts with sponsors. Rather, as Mr. Martins described, Mr. Nathaniel and NVA intruded into Mr. Martins’s arrangements, although he permitted those intrusions. Objectively, from a purely financial point of view, those intrusions were of benefit to Mr. Martins because they generated funds. Mr. Martins accepted in cross-examination that he had failed to obtain payment of sums due to him, at least from Friesland and Pepsi, by not rendering invoices. However, in the absence of an agreement for payment for the services provided, NVA would only be entitled to remuneration on a quantum meruit basis, as opposed to an agreed rate of commission.

Mr. Martins accepted in cross-examination that he allowed NVA to intervene and to raise invoices to sponsors for sums due. He appeared to recognise in his witness statement, and expressly accepted in cross-examination, that it was appropriate for NVA to be remunerated for the work which it had done, but he considered that the sums he had paid already were sufficient recompense for all NVA had in fact done, whether in relation to the conclusion of the Image Rights Contract, collecting money from sponsors, or anything else.

In cross-examination Mr. Nathaniel told me that there was no such thing as a standard rate of commission in his sphere of activity. Commissions could be anything from 1% to 10%. NVA sought to charge Mr. Martins 20% of sums received by him from sponsors or under the Image Rights Contract, but Mr. Nathaniel contended that half of the 20% was for Mr. Olowu. Mr. Martins was cross-examined about usual rates of commission in the football world. His evidence was, as it seemed to me, to the same effect as that of Mr. Nathaniel, namely that there was no customary rate of commission and everything depended on what was agreed. However, rates of commission could be as high as 20%.

An aspect of a consideration of a reasonable sum for the provision of services is the need to address the question what services were provided for which a reasonable sum falls to be determined. Plainly NVA rendered invoices on behalf of Mr. Martins. That service, involving just the production of a piece of paper, would not seem to justify any very substantial reward. However, Mr. Nathaniel, supported by evidence from other employees of NVA, in particular Mr. Anthony Douglas and Mr. Adelakun, said that before being in a position to render invoices NVA had to establish what were the terms of each of the relevant contracts into which Mr. Martins had entered. As I find, Mr. Nathaniel greatly exaggerated how difficult that was, and what had to be done to discover the terms of the relevant contracts. No documentary evidence of steps taken to make enquiries was put before me. It seemed that Nike paid at least the ordinary sums due – in some circumstances bonus payments were due – direct into Mr. Martins’s bank account. If that is so, it appears that little or nothing needed to be done to ensure that sums due from Nike were paid. The making of the Second Friesland Agreement on 8 October 2007 suggests that the terms of the predecessor must have been known some time before that date, otherwise the new agreement could not have been finalised. The terms of the Second Friesland Agreement were quite similar to those of the First Friesland Agreement.

It was for NVA, insofar as it relied on a quantum meruit in relation to alleged recovery for Mr. Martins of sums due from sponsors, both to prove what work it had done, and what a reasonable sum for the work was. In my judgment it failed on both counts. There was no proper evidence of what NVA did, and no reliable evidence of what would be an appropriate basis of assessment of a reasonable sum for any work done.

On behalf of Mr. Martins Mr. Barklem accepted that he had made use of Mr. Nathaniel and NVA in relation to “lifestyle management”. The only reliable evidence, as it seemed to me, of what NVA had in fact done was the invoices which it raised, and Mr. Martins settled, for reimbursement of expenses. An invoice dated 22 October 2007 showed that NVA had booked a first class ticket on British Airways for Mr. Martins from Mexico to Newcastle. A further invoice of the same date showed that NVA had booked two seats on a flight from Newcastle to Heathrow on 2 September 2007 for Mr. Martins and had booked hotel accommodation which was cancelled. From an invoice dated 4 December 2007 it seems that NVA had booked two seats on a flight from Heathrow to Newcastle for Mr. Martins. An invoice dated 17 December 2007 indicated that NVA had booked accommodation at the London Heathrow Marriott hotel for Mr. Martins’s friend, Mr. Salami, at Mr. Martins’s request. The invoice dated 19 January 2008 raised by NVA related to booking two seats on a flight from Newcastle to London for a music video shoot. I have already noted the invoice dated 7 February 2008 in the sum of £2,000 in relation to so-called “Ghana Lifestyle services”. There were two invoices which related to work done for Oba Score Ltd. The first, dated 21 February 2008, included the cost of design of a logo and IT support costs. The second, dated 25 February 2008, was for the cost of business cards. The last, and largest, invoice for reimbursement of expenses was dated 30 May 2008. From the narrative it was concerned with events over a period:-

“International air ticket to Malpensa (Obafemi Martins)

2 International air ticket to Lagos (Obafemi and Yussuf Martins)

Vehicle Hire (Trip to barbers SW9 as directed from Haymarket Hotel and drop off to Heathrow Airport)

Runner Expenses incurred for trip to Newcastle to sort Visa for Elizabeth Foster 28/5/2008

Runner fee for Newcastle trip based on £20PH x 13 hrs

Runner Expenses incurred for trip to Milan Linate (Flight ticket)

Runner fee for Italy trip based on £30PH x 14 hrs

Cash Loan 20/5/2008

American Visa Application Form”

Thus it seems that what NVA did which it did not charge for – it did charge the time of couriers it provided to go to Newcastle and to Milan, and for the “Ghana lifestyle services” – was book air tickets, hotel accommodation, and the like. Apart from the one off arranging of services for Oba Score Ltd., the vehicle hire, loan and American visa application form listed on the invoice dated 30 May 2008, and whatever was the subject of the Ghana invoice dated 7 February 2008, NVA booked flights for Mr. Martins, or at his request, on six occasions, booked hotel accommodation on two occasions and arranged couriers on two occasions. It was not obviously a great deal of work. Mr. Martins, however, had the benefit of that work. Had that work been provided on the basis that it was to be paid for, NVA would be entitled to reasonable remuneration for the work done. However, the clear evidence of Mr. Nathaniel, which on this point I do accept, was that the “lifestyle management” services were provided as a matter of goodwill for the client. In those circumstances NVA is not entitled to be paid a reasonable sum for the services provided to Mr. Martins and I cannot see how, in those circumstances, it could be relevant to the assessment of a reasonable sum for services for which NVA was entitled to be paid to have any regard whatever to the provision of the “lifestyle management” services.

Leaving on one side the sums paid by Mr. Martins to NVA by way of reimbursement of expenditure incurred on his behalf, and the alleged “Ghana lifestyle services”(which together total £20,342.16), Mr. Martins paid to NVA during the course of his relationship with it a minimum of £286,299.99 (£306,642.15 minus £20,342.16). I am left with the firm impression that that sum of at least £286,299.99 amounts to more than generous recompense for whatever of value NVA actually did for Mr. Martins, whether in relation to the Image Rights Contract, the obtaining of sums due under sponsorship agreements, or “lifestyle management”.

In the result, therefore, the claims of NVA against Mr. Martins fail and are dismissed.